THE 



UNITED STATES AND THE STATES 



UNDER THE CONSTITUTION. 



C. STUART PATTERSON. 



SECOND EDITION, 

WITH NOTES AND REFERENCES TO 
ADDITIONAL AUTHORITIES, 

BY 



ROBERT P. REEDER, 

I 

OF THE PHILADELPHIA BAR. 



PHILAD ELPHI A : 

T. & J. W. JOHNSON & CO. 
1904. 



V^, '^- 



THE LIBRARY Of 
CONSFtESS 

Two CoDies RBCsived 

OCT 31 1904 
Copyright Entry 

CLASS Ci, aXc. Noi 
/oo / ao 

COPY A. 



\ 



l>c 



-^^/^^ p<^ 



A 



Copyright, 1904, 
By C. Stuart Patterson and Robert P. Ebbder. 



o-^ 






^ 
^ 



To 

EDWARD PATTERSON, LL. D., 

A Justice of the Appellate Division 

OF the 

Supreme Court of New York, 



I AFFECTIONATELY DEDICATE THIS BOOK. 



C. Stuart Patterson, 



PREFACE. 

While this is a second edition of a book published in 
1888, it is to a great extent a new book. The text has 
been not only revised, but largely rewritten. The text 
is exclusively my work, but the references in the notes to 
the later cases are entirely the work of Mr. Reeder, who 
has prepared the table of cases and the index, and who 
has kindly read all the proofs. 

My hearty acknowledgments are due to Mr. Reeder 
for the valuable assistance which he has rendered to me, 
and also for very many pertinent suggestions which I 
have adopted, and which have given to the text much of 
any value it may have. 

C. S. P. 



Philadelphia, 
1st Oct., 1904. 



CONTENTS. 



CHAPTEE I. 

THE RELATION OF THE STATES AND OF THE TEEEITOKIES 
TO THE UNITED STATES AND TO EACH OTHEE. 

1. The sanction of the Constitution. 

2. The indissolubility of the Union. 

3. The autonomy of the states. 

4. The delegated character and limited powers of the government of the 

United States. 

5. The federal supremacy. 

6. The restraints upon the states. 

7. The force and effect of the preamble to the Constitution. 

8. The territories. 

CHAPTER n. 

THE IMPLIED POWEES. 

9. The necessity of their existence. 

10. Their constitutional recognition. 

11. The test of the relation of the means to the end. 

12. Illustrations of the exercise of the implied powers. 

13. The legal tender question. 



CHAPTER in. 

TAXATION. 

14. Taxation defined and limited. 

15. Taxation by the United States. 

16. Eestrictions upon federal taxation. 

17. Taxation of exports. 

18. Direct taxation. 

19. Eequirement of uniformity. 

20. Taxation in the territories. 

21. Exemption of state agencies from taxation by the United States. 

22. Charges which are not taxes exempt from constitutional restraints. 

vii 



VIU CONTENTS. 

23. Taxation by the states. 

24. Expressed restraints upon state taxation. 

25. Implied restraint upon state taxation resulting from the federal 

supremacy. 

26. Taxation of national banks. 

27. State taxation as affected by the prohibition of the impairment of 

the obligation of contracts. 

28. State taxation as affected by the grant to Congress of the power of 

regulating commerce. 



CHAPTER IV. 

THE REGULATION OF COMMEECE. 

29. The constitutional provisions. 

30. The historical reason for the provisions. 

31. Commerce defined. 

32. Eegulation of commerce defined. 

33. The general principles defining the limits of national and state regu- 

lation. 

34. The internal commerce of a state. 

35. Navigable waters and the soil under them. 

36. Preferences of ports. 

37. Duties upon exports. 

38. Duties upon tonnage. 

39. Port dues. 

40. Pilotage. 

41. Eegulation of navigation. 

42. Port regulations. 

43. Quarantine. 

44. Ferries. 

45. Bridges and dams. 

46. Improvements of navigation. 

47. Wharves and piers. 

48. State duties upon imports and exports. 

49. State inspection laws. 

50. Taxation discriminating against goods from other states. 

51. The original package doctrine. 

52. Transportation: (a) State regulation in the exercise of the police 

power; (b) Eegulation by taxation; (c) The Interstate Commerce 
Act. 

53. The Anti-trust law. 

54. Telegraphs. 

55. Commerce with the Indian tribes. 



CONTENTS. IX 

CHAPTEE V. 

THE IMPAIEMENT OF THE OBLIGATION OF CONTEACTS. 

56. The prohibition affects only state laws. 

57. The term "law" defined. 

58. Judgments of state courts not conclusive either as to the non-existence 

or non-impairment of contracts. 

59. The obligation of a contract defined. 

60. Legislation as to remedies. 

61. The term "contracts" defined. 

62. State insolvent laws. 

63. Judgments as contracts. 

64. Municipal taxation. 

65. History of the prohibition. 

66. State grants. 

67. Express contracts of exemption from taxation. 

68. Express grants of peculiar privileges. 

69. Contracts between a state and its political subdivisions. 

70. Implied contracts in charters of incorporation. 

71. Implied corporate exemption from taxation. 

72. Implied grants of peculiar privileges. 

73. Exemption from the operation of the police power. 

74. Contracts as to matters of public concern. 

75. The withdrawal by a state of its consent to be sued. 

76. The force and effect of the prohibition as construed by the Supreme 

Court. 

CHAPTEE VI. 

EX POST FACTO LAWS AND BILLS OF ATTAINDER. 

77. The constitutional provisions. 

78. The distinction between retrospective and ex post facto laws. 

79. Ex post facto laws defined. 

80. Illustrations of ex post facto laws. 

81. Illustrations of laws which are not ex post facto. 

82. Bills of attainder and bills of pains and penalties. 



CHAPTEE VII. 

THE PROHIBITION OF STATE BILLS OF CREDIT. 

83. Bills of credit defined. 

84. "What are, and what are not, bills of credit. 



CONTENTS. 

CHAPTEK Vm. 

STATE COMPACTS. 

85. What compacts are permitted, and what are forbidden. 

CHAPTER IX. 

FUGITIVES FEOM JUSTICE. 

86. The constitutional provision. 

87. The concurrent jurisdiction of the federal and state courts. 



CHAPTER X. 

THE JUDICIAL POWER. 

88. The constitutional provisions. 

89. The theory of a judicial system under the common law. 

90. The necessity of a federal judiciary. 

91. Cases in law and equity, etc. 

92. Cases affecting ambassadors, etc. 

93. Admiralty. 

94. Controversies to which the United States shaU be a party. 

95. Controversies between citizens of different states. 

96. Controversies between two or more states. 

97. Controversies between a state and citizens of another state, etc. 

98. Federal jurisdiction. 

99. Exclusive and concurrent jurisdiction. 

100. The courts of the United States. 

101. Original jurisdiction. 

102. Appellate and supervisory jurisdiction. 

103. The necessity of a judicial "ease." 

104. The federal judiciary. 

105. The federal supremacy. 

106. Constitutional and statutory construction. 

107. Judgments of courts. 

108. Treaties. 

109. The law administered in the federal coiu*ts. 

110. Courts martial and impeachments. 

111. The IV Amendment. 

112. The V Amendment — (a) Due process of law; (&) Jeopardy, etc. 

113. The VI Amendment. 

114. The VII and VIII Amendments. 

115. The XI Amendment. 



CONTENTS. Xl 

116. The relations between the federal and state courts. 

117. The XrV Amendment as affecting state judicial proceedings. 

118. The "fuU faith and credit" clause. 



CHAPTER XL 

EIGHTS OF PEESON AND OF PEOPEETY. 

119. Citizenship of the United States. 

120. Citizenship of a state. 

121. The right of suffrage. 

122. The right of serving on juries. 

123. Congressional regulation of federal elections. 

124. Immigrants and aliens. 

125. Personal and property rights. 

126. The rights within a state of citizens of other states. 

127. Foreign corporations. 

128. The I Amendment. 

129. The Xni Amendment. 

130. The XIV Amendment. 

131. The equal protection of the laws. 

132. The police power. 



CHAPTEE XII. 

THE FEDEEAL SUPEEMACY AND THE EESEEVED EIGHTS OF 

THE STATES. 

133. The results of federal supremacy. 

134. The constitutional reservation of the rights of the states. 

135. The nature and extent of those reserved rights. 

136. The importance of the preservation of the rights of both the United 

States and the states. 



TABLE OF CASES CITED 



The references are to the pages. 



A. A. P. Co. V. D. P. Co., 191 

U. S. 373 282, 288 

A. B. Co. V. Kansas, 193 U. 

S. 49 228 

Aberdeen Bank v. Chehalis 

County, 166 U. S. 

440 50, 52 

Ableman v. Booth, 21 How. 

506 18, 271 

Achison v. Huddleson, 12 

How. 293 97 

Adams v. Nashville, 95 U. S. 19 49 
V. New York, 192 U. S. 

585 246, 320 

A. Ex. Co. V. Kentucky, 166 

U. S. 171 40, 57, 103 

V. Michigan, 177 U. S. 

404 206 

V. Ohio, 165 U. S. 194, 

166 id. 185 

40, 54, 57, 103, 316 
A. I. Co. V. Canter, 1 Pet. 

511 8, 9, 19 

Ainsa v. U. S., 184 U. S. 639 209 
Alabama v. Georgia, 23 How. 

505 191, 211 

Albany Bridge Case, The, 2 

Wall. 403 84 

Allen V. Louisiana, 103 U. S. 

80 233 

V. Newberry, 21 How. 

244 209 

V. P. P. C. Co., 191 U. S. 

171 55, 56, 58, 103, 105 
V. S. P. E., 173 U. S. 479 224 
Allgeyer v. Louisiana, 165 

U. S. 578 63, 280 

Abny v. California, 24 How. 

169 57, 64, 88, 106 

Ambrosini v. U. S., 187 U. S. 

1 39 

Ames V. Kansas, 111 TJ. S. 

449 206, 221, 225 

Amy i;. Shelby County, 114 

U. S. 387 179 

V. Supervisors, 11 Wall. 

136 266, 267 



Anderson v. Dunn, 6 Wheat. 

204 18 

V. U. S., 171 U. S. 604 128 
Andrews v. Andrews, 188 U. S. 

14 283, 284, 286 

V. Swartz, 156 U. S. 272 

274, 282 
Antoni v. Greenhow, 107 U. S. 

769 145 

A. P. Co. V. Fisher, 166 U. S. 

464 256 

A. P. & S. Co. V. U. S., 175 

U. S. 211 67, 127, 251 

Arbuckle v. Blackburn, 191 

U. S. 405 215, 276, 319 

Arkansas v. K. & T. C. Co., 

183 U. S. 185 206, 210, 225 
Armstrong v. Carson, 2 Dall. 

302 283 

V. Lear, 8 Pet. 52 229 

Arndt v. Griggs, 134 IT. S. 

316 274 

Arnson v. Murphy, 109 IT. S. 

238 265 

Arrowsmith v. Harmoning, 

118 U. S. 194 276 

A. E. T. Co. V. Hall, 174 U. S. 

70 40, 57, 103 

A. Ey. V. New York, 176 U. S. 

335 142, 161, 176, 278 

Asher v. Texas, 128 U. S. 

129 55, 92, 302 

Ashley v. Eyan, 153 IT. S. 436 

22, 55, 103, 304, 305, 306 
A. S. of M. H. V. McAnnulty, 

187 U. S. 94 229 

Aspinwall v. Daviess Coimty, 

22 How. 364 148, 149 

A. S. E. Co. V. Louisiana, 179 

U. S. 89 320 

Asylum v. New Orleans, 105 

U. S. 362 52, 162, 163 

A. S. & W. Co. V. Speed, 192 

U. S. 500 

43, 55, 87, 92, 94 
Atherton v. Atherton, 181 IT. 

S. 155 286 



Xlll 



XIV 



TABLE OF CASES CITED. 
The references are to the pages. 



Atkin V. Kansas, 191 IT. S. 

207 278, 319 

A., T. & S. F. E. V. Matthews, 

174 U. S. 96 313, 314, 318 
Austin V. Tennessee, 179 U. S. 

343 96 

Auten V. U. S. Nat. Bank, 174 

U. S. 125 206 

A. V. L. & C. Co. V. Mann, 130 

U. S. 69 257 

Ayers, In re, 123 U. S. 443 180, 261 
A. & P. T. Co. V. Philadelphia, 

190 U. S. 160 24, 134 

Backus V. F. S. U. D. Co., 169 

U. S. 557 274, 277 

Bacon v. Howard, 20 How. 22 283 

Bailey v. Maguire, 22 Wall. 

215 174 

Bain, Ex parte, 121 TJ. S. 1 247 

Baker v. Grice, 169 U. S. 284 225 

Baldwin v. Franks, 120 U. S. 

678 233, 238 

V. Hale, 1 Wall. 223 

147, 152, 153 

Baltimore v. B. T. Co., 166 

U. S. 673 177 

Baltzer v. North Carolina, 161 

U. S. 240 180 

Banholzer v. N. Y. L. I. Co., 

178 U. S. 402 282 

Bank v. Supervisors, 7 Wall. 

26 44 

Bank of Alabama v. Dalton, 

9 How. 522 267, 283, 288 

Bank of Augusta v. Earle, 13 

Pet. 519 63, 304, 305 

Bank of Columbia v. Okely, 4 

Wheat. 235 256 

Bank of Commerce v. Tennes- 
see, 161 U. S. 134, 163 
id. 416 162 

Bank of Hamilton v. Dudley's 

Lessee, 2 Pet. 492 204 

Bank of Kentucky v. Wister, 

2 Pet. 318 262 

Bank of Eedemption v. Bos- 
ton, 125 U. S. 60 50 

Bank of U. S. v. Deveaux, 

5 Cr. 61 303 

V. Halstead, 10 Wheat. 

51 265 

V. Planters' Bank, 9 
Wheat. 904 262 

Bank of Washington v. Arkan- 
sas, 20 How. 530 180 

Banks v. Mayor, 7 Wall. 16 44 

Bank Tax Case, 2 Wall. 200 44 

Barber v. Barber, 21 How. 582 210 



Barbier v. Connolly, 113 U. S. 

27 314, 321 

Barings v. Dabney, 19 Wall. 1 169 
Barney v. Baltimore, 6 WaU. 

280 210 

V. City of New York, 193 

U. S. 430 280, 319, 323 
V. Keokuk, 94 U. S. 324 72 
Barnitz v. Beverly, 163 U. S. 

118 146 

Barrett v. Holmes, 102 U. S. 

651 143, 279 

Barron v. Baltimore, 7 Pet. 243 247 
V. Burnside, 121 U. S. 186 307 
Bartemeyer v. Iowa, 18 Wall. 

129 100, 298 

Bartlett v. Lockwood, 160 U. 

S. 357 80 

Barton v. Barbour, 104 U. S. 

126 255 

Bates V. Clark, 95 U. S. 204 264 
Bath County v. Amy, 13 Wall. 

244 267 

Bauman v. Eoss, 167 U. S. 

548 11, 251, 253 

Bausman v. Dixon, 173 U. S. 

113 206 

Bayard v. Singleton, 1 Mar- 
tin, (N. C.) 42 233 
B. B. & B. C. E. V. New What- 
com, 172 U. S. 314 277 
Beatty v. Benton, 135 U. S. 

244 224 

Bedford v. E. B. & L. Assn., 

181 U. S. 227 142, 306 
V. U. S., 192 U. S. 217 253 
Beer Co. v. Massachusetts, 97 

U. S. 25 100, 176, 178 

Beers v. Arkansas, 20 How. 

527 180, 181 

Belden v. Chase, 150 II. S. 

674 206, 209 

Belfast, The, 7 Wall. 624 

208, 209, 269 
Belknap v. Schild, 161 U. S. 

10 209 253 

Bell V. Bell, 181 U. S. 175 ' 286 
Bellaire v. B. & O. E., 146 

U. S. 117 225 

Bement v. N. H. Co., 186 

U. S. 70 126, 128 

Benjamin v. New Orleans, 169 

U. S. 161 215 

Benner v. Porter, 9 How. 235 9 
B. G. E. V. Pennsylvania, 134 

U. S. 232 41, 43, 316 

Bier v. McGehee, 148 U. S. 

137 139, 148, 149 

Bigby V. U. S., 188 U. S. 400 209 



TABLE OF CASES CITED. 
The references are to the pages. 



XV 



Bigler v. Waller, 14 Wall. 297 21 
BiUings v. lUinois, 188 U. S. 

97 41, 316 

Bingham v. Cabot, 3 Dall. 382 215 
Binghamton Bridge, 3 Wall. 

51 167, 168, 175 

Bischoff V. Wethered, 9 WaU. 

812 284 

Blackstone v. Miller, 188 U. S. 

189 40, 41, 140 

Blair v. Cuming County, 111 

U. S. 363 25 

Blake v. McClung, 172 U. S. 

239 215, 303, 304, 319 

V. McClung, 176 U. S. 59 303 
hi re, 175 U. S. 114 267 

Blount V. Walker, 134 U. S. 

607 287 

V. Windley, 95 U. S. 

173 144, 148, 153 

Blyew V. U. S., 13 Wall. 581 206 
Board of Assrs. v. C. N. D'E., 

191 U. S. 388 40, 41 

Board of Liquidation v. Loxiis- 

iana, 179 U. S. 622 141 
V. McComb, 92 U. S. 

531 263, 264 

Board of Pub. Works v. Co- 

limibia College, 17 

Wall. 521 284 

Bock V. Perkins, 139 U. S. 

628 19, 206, 225, 272 

Bolles V. Brimfield, 120 U. S. 

759 242 

BoUman and Swartwout, Ex 

parte, 4 Cr. 75 243, 250 
Bolln V. Nebraska, 176 U. S. 

83 2, 274 

Bonaparte v. Tax Court, 104 

U. S. 592 23, 42 

Boom Co. V. Patterson, 98 

U. S. 403 210 

Booth V. Illinois, 184 U. S. 

425 232, 279, 321 

Borer v. Chapman, 119 U. S. 

587 265 

Bors V. Preston, 111 U. S. 252 221 
Boske V. Comingore, 177 U. S. 

459 18, 206, 215, 

224, 225, 238, 270 
Boswell's Lessee v. Otis, 9 

How. 336 273, 285 

Botiller v. Dominguez, 130 

U. S. 238 238 

Bowman v. C. & N. W. By., 

125 U. S. 465 69, 94, 102 
V. Middleton, 1 Bay, 

(S. C.) 252 233 

Boyce v. Tabb, 18 Wall. 546 310 



Boyd v. Alabama, 94 U. S. 645 176 
V. Nebraska, 143 U. S. 

135 224, 291 

V. U. S., 116 U. S. 616 246 

Boyd, Ex parte, 105 U. S. 647 210 

Boyer v. Boyer, 113 U. S. 689 50 

Boyle V. Zacharie, 6 Pet. 

635 147, 151 

Bradfield v. Eoberts, 175 II. S. 

291 309 

Bradley v. Lightcap, 195 U. S. 

1 146, 276 

V. The People, 4 Wall. 459 49 
Bradwell v. State, 16 WaU 

130 301, 311 

Brass v. North Dakota, 153 

U. S. 391 98, 278, 315, 317 
Breithaupt v. Bank of Georgia, 

I Pet. 238 215 
Brennan v. Titusville, 153 

U. S. 289 55, 92 

Bridge Proprietors v. Hoboken 

Co., 1 Wall. 116 141, 168 
Brimmer v. Eebman, 138 U. S. 

78 54, 89, 91 

Briscoe v. Bank of Kentucky, 

II Pet. 257 

3, 189, 190, 234, 262 
Bristol V. Washington County, 

177 U. S. 133 22, 40, 41 
Bronson v. Kimpton, 8 Wall. 

444 20 

V. Kinzie, 1 How. 311 146 
V. Eodes, 7 Wall. 229 20 

Brown v. Houston, 114 U. S. 

622 54, 69, 90, 94, 104 

V. Huger, 21 How. 305 264 
V. Keene, 8 Pet. 112 215 

V. Maryland, 12 Wheat. 
419 28, 43, 62, 

88, 93, 94, 235 
V. New Jersey, 175 U. S. 

172 274, 282, 298, 320, 322 
V. Smart, 145 U. S. 454 139 
V. Trousdale, 138 IT. S. 

389 225 

V. Walker, 161 U. S. 

591 111, 232, 252 

In re, 135 U. S. 701 143 

Brownfield v. South Carolina, 

189 U. S. 426 313 

Bryan v. Board of Education, 

151 IT. S. 639 141, 165 

V. Virginia, 135 U. S. 
685 14 r 

B. T. Co. V. B. B. E., 151 

U. S. 137 276, 282 

Bueher v. C. E., 125 U. S. 

555 210, 243, 282 



XVI 



TABLE OP CASES CITED. 

The references are to the pages. 



Buck V. Colbath, 3 Wall. 334 273 
Buckner v. Finley, 2 Pet. 586 2 
Budd V. New York, 143 U. S. 

517 98, 101a, 278, 315 

Burgess v. Seligman, 107 

U. S. 20 240, 242 

Burlington v. Beasley, 94 U. S. 

310 24 

Burthe v. Denis, 133 U. S. 

514 206, 224 

Bush V. Kentucky, 107 U. S. 

110 216, 313 
Butchers' Union v. C. C. Co., 

111 U. S. 746 178 
Butler V. B. & S. S. Co., 130 

U. S. 527 208, 209, 238 
V. Horwitz, 7 Wall. 258 20 
V. Pennsylvania, 10 How. 

402 147, 179 

Butterworth v. Hoe, 112 U. S. 

50 229 

Buttfield V. Stranahan, 192 

U. S. 470 66, 232, 251 

B. W. S. Co. V. Mobile, 186 

U. S. 212 165 

Byers v. McAuley, 149 U. S. 

608 210, 266, 272 

Byrne v. Missouri, 8 Pet. 40 189 
B, & O. E. V. Harris, 12 Wall. 

65 215 

V. Maryland, 21 Wall. 

456 23, 56, 102 

B. & S. E. V. Nesbit, 10 How. 

395 182, 183 

Cable V. U. S. L. I. Co., 191 

U. S. 288 307 

Calder v. Bull, 3 Dall. 386 

182, 183, 184 
Caldwell v. Carrington, 9 Pet. 

86 283 

V. North Carolina, 187 

U. S. 622 55 

V. Texas, 137 U. S. 692 273 
California v. C. P. E., 127 

U. S. 1 54, 103, 305 

V. S. P. Co., 157 U. S. 
229 213 

Callan v. Wilson, 127 U. S. 

540 10, 246, 252 

Cameron v. Hodges, 127 U. S. 

322 210 215 

Campbell v. Holt, 115 IT. s! 

620 279 

V. Wade, 132 U. S. 34 148, 149 
Cannon v. New Orleans, 20 

Wall. 577 44, 74, 76 

Caperton v. BaUard, 14 Wall. 

238 283 



Capron v. Van Noorden, 2 Cr. 

126 215 

Cardwell v. A. B. Co., 113 

U. S. 205 84 

Carneal v. Banks, 10 Wheat. 

181 238 
Carpenter v. Pennsylvania, 17 

How. 456 41, 42, 182, 183 
V. Strange, 141 U. S. 87 285 
Carroll County v. Smith, 111 

U. S. 556 242 

Carson v. Brocton S. Com., 

182 U. S. 398 24, 277 
Carstairs v. Cochran, 193 U. S. 

10 40 

Carter v. McClaughry, 183 

U. S. 365 252 

V. Texas, 177 U. S. 
442 295, 313, 319 

Case V. Kelly, 133 U. S. 21 243 
Cates V. Allen, 149 U. S. 451 255 
C, B. & Q. E. V. Chicago, 166 
U. S. 226 

101a, 176, 257, 277 
V. Iowa, 94 U. S. 155 

98, 176, 177 
V. Nebraska, 170 IJ. S. 
57 141, 176, 177, 178 

C, C, C. & St. L. Ey. V. 
Backus, 154 U. S. 
439 22, 40, 57, 103 

V. Hlinois, 177 U. S. 514 101 
C. C. D. Co. V. Ohio, 183 U. S. 

238 206, 247, 279, 298, 315 
C, C. & A. E. V. Gibbes, 142 
U. S. 386 

24, 278, 304, 314, 316 
C. D. Co. V. Shepherd, 20 How. 

227 303 

Central Nat. Bank v. Stevens, 

169 U. S. 432 272 

Central E. & B. Co. v. Wright, 

164 II. S. 327 53, 162, 166 
C. F. D. N. V. Louisiana, 186 

U. S. 380 80 

Chadwick v. Kelley, 187 U. S. 

540 228, 316 

Chandler v. Dix, 194 U. S. 590 260 
Chapman v. Barney, 129 U. S. 

677 215 

In re, 166 U. S. 661 18 

Chappell V. U. S., 160 U. S. 

499 19 

V. Waterworth, 155 U. S. 
102 215, 225 

Charles Eiver Bridge v. War- 
ren Bridge, 11 Pet. 544 174 
Cheever v. Wilson, 9 Wall. 

108 283 



TABLE OF CASES CITED. 
The references are to the pages. 



XVll 



Chemung Canal Bank v. Low- 

ery, 93 U. S. 72 302 

Cherokee Nation v. Georgia, 5 

i'et. 1 135, 213, 229 

V. S. K. Ey., 135 U. S. 

641 135, 253 

Cherokee Tobacco, The, 11 

Wall. 616 238 

Chicago V. Sheldon, 9 Wall. 

50 52, 139, 162, 163 

Chicago Theological Sem- 
inary V. Illinois, 188 

U. S. 662 53, 166 

China, The, 7 Wall. 53 77 

Chin Bak Kan v. U. S., 186 

U. S. 193 297 

Chinese Exclusion Case, 130 

U. S. 581 

19, 238, 239, 296, 297 
Chirac v. Chirac, 2 Wheat. 259 

238, 291 
Chisholm v. Georgia, 2 Dall. 

419 205, 214, 258 

Chittenden v. Brewster, 2 

Wall. 191 266 

Christ Church v. Philadelphia, 

24 How. 300 164 

Christmas v. Eussell, 5 Wall. 

290 283 

Christy, Ex parte, 3 How. 292 268 
Church V. Hubbart, 2 Cr. 187 229 
V. Kelsey, 121 U. S. 282 

179, 274 
Chy Lung v. Freeman, 92 

U. S. 275 57, 105, 296 

Citizens' Bank v. Parker, 192 

U. S. 73 52, 162, 166 

Citizens' Savings Bank v. 

Owensboro, 173 U. S. 

636 53, 165, 166 

Citizens' S. & L. Assn. v. 

Perry County, 156 

U. S. 692 148 

City V. Lamson, 9 WaU. 477 139 
City of Panama, 101 U. S. 453 9 
CivU Eights Cases, 109 IT. S. 

3 323 

Claflin V. Houseman, 93 U. S. 

130 218, 268, 269 

Clark V. Barnard, 108 U. S. 

436 260, 265 

V. Bever, 139 U. S. 96 

210, 242, 243 
V. Kansas City, 176 U. S. 

114 320 

V. Titusville, 184 U. S. 

329 41, 316 

Clarke v. Clarke, 178 U. S. 

186 210, 284, 285 



Clarke, Ex parte, 100 U. S. 399 296 
Clay V. Field, 138 U. S. 464 310 
C. L. Co. V. Laidley, 159 U. S. 

103 140, 276 

Cleveland v. C. C. Ey., 194 

U. S. 517 178 

V. C. E. Ey., 194 U. S. 538 178 
C. L. I. Co. V. Needles, 113 

U. S. 574 140, 175 

Clinton v. Englebrecht, 13 

Wall. 434 9 

Clinton Bridge, The, 10 Wall. 

454 83 

Close V. Glenwood Cemetery, 

107 U. S. 466 165 
C. M. Co. V. Ferguson, 113 

U, S. 727 234, 308 

C. M. L. I. Co. V. Cushman, 

108 U. S. 51 143 
V. Spratley, 172 U. S. 602 

142, 148, 176, 308 
C, M. & St. P. Ey. V. Minne- 
sota, 134 U. S. 418 

101a, 176, 177, 278, 313 
V. Solan, 169 U. S. 133 

99, 140, 148, 243 
V. Tompkins, 176 U. S. 
167 101a, 278, 315 

C. N. B. & L. Assn. v. Denson, 

189 U. S. 408 308 

C, N. O. & T. P. Ey. V. I. C. 

C, 162 U. S. 184 110, 111 
Codlin V. Kohlhausen, 181 

U. S. 151 228 

Coe V. Errol, 116 U. S. 517 

22, 41, 55, 69, 104 
Cohens v. Virginia, 6 Wheat. 
264 
204, 205, 206, 210, 214, 

217, 224, 228, 236, 262 
Cole V. Cimningham, 133 U. S. 

107 266, 283, 284 

V. La Grange, 113 U. S. 

1 24 

Collector v. Day, 11 Wall. 113 39 

Collet V. Collet, 2 Dall. 294 291 

Commercial Bank v. Chambers, 

182 U. S. 556 50 

Commissioners of Tippecanoe 

V. Lucas, 93 U. S. 108 275 
Commonwealth v. Caton, 4 

Call, (Va.) 5 233 

Conner v. Elliott, 18 How. 593 301 
Connolly v. U. S. P. Co., 184 
U. S. 540 

41, 126, 204, 233, 314, 316 
Connors v. U. S., 158 U. S. 

408 296 

Contzen v. U. S., 179 U. S. 191 291 



XVIU 



TABLE OF CASES CITED. 
The references are to the pages. 



Converse, In re, 137 U. S. 624 276 
Conway v. Taylor, 1 Bl. 603 

82, 100 
Cook V. Hart, 146 U. S. 183 195 
V. Moffat, 5 How. 295 

147, 152 
V. Pennsylvania, 97 U. S. 

566 43, 62, 88 

V. U. S., 138 U. S. 157 

186, 254 
Cook County v. C. & C. C. & 

D. Co., 138 U. S. 635 224 
Cooke V. Avery, 147 U. S. 

375 206 

Cooley V. Board of Wardens, 

12 How. 299 69, 76 

Cooper V. Newell, 173 U. S. 

555 283, 285, 287 

V. Eeynolds, 10 Wall. 308 285 
In re, 143 U. S. 472 228 

Corfield v. Coryell, 4 Wash. 

C. C. 371 300 

Cornell v. Coyne, 192 U. S. 

418 29, 73 

Corson v. Maryland, 120 U. S. 

502 55, 91, 302 

Cosgrove v. Winney, 174 IJ. S. 

64 194, 250 

Cotting V. K. C. S. Y. Co., 183 

U. S. 79 278, 313 

Coughran v. Bigelow, 164 

U. S. 301 256 

Counselman v. Hitchcock, 142 

U. S. 547 110 

County of Livingston v. Dar- 
lington, 101 U. S. 407 24 
County of Mobile v. Kimball, 

102 U. S. 691 

62, 69, 85, 86 
County of Moultrie v. Eock- 

ingham T. C. S. Bank, 

92 II. S. 631 138, 148, 154 
County of Ealls v. Douglass, 

105 U. S. 728 139 

Covell V. Heyman, 111 IJ. S. 

176 271, 272 

Covington v. Kentucky, 173 

U. S. 231 165 

Cowles V. Mercer County, 7 

Wall. 118 305 

Coy, In re, 127 U. S. 731 296 

C. P. Co. V. Beckwith, 188 

U. S. 567 282 

C. P. E. V. California, 162 

U. S. 91 47 

V. Nevada, 162 U. S. 512 46 
Craig V. Missouri, 4 Pet. 411 189 
Crandall v. Nevada, 6 Wall. 

35 47, 89, 104, 303 



Crenshaw v. U. S., 134 U. S. 

99 179 

C, E. I. & P. Ey. V. Sturm, 

174 U. S. 710 288 

V. Zernecke, 183 U. S. 

582 278 

Cronin v. Adams, 192 U. S. 

108 278 
Cross V. Allen, 141 U. S. 528 

210, 242, 243, 282 
V. Harrison, 16 How. 164 27 
V. North Carolina, 132 
U. S. 131 269, 272, 276 
Crossley v. California, 168 

U. S. 640 225, 269 

Crossman v. Lurman, 192 U. S. 

189 96, 100 

Crow Dog, Ex parte, 109 U. S. 

556 136 
Crowley v. Christensen, 137 

U. S. 86 322 

Cruickshank v. Bidwell, 176 

U. S. 73 229 

Crutcher v. Kentucky, 141 

U. S. 47 

55, 56, 93, 105, 305 
C. Ey. V. C. S. E., 166 U. S. 

557 163, 165 
C. E. & B. Co. V. Wright, 164 

U. S. 327 53, 162, 166 

C. S. Ey. V. Gebhard, 109 

U. S. 527 308 

V. Snell, 193 U. S. 30 318 
V. Wright, 151 U. S. 470 317 
C. T. Co. V. Hof, 174 U. S. 

1 10 257 

V. Lander, 184 U. S. Ill 

45, 48 
Cumming v. Board of Educa- 
tion, 175 U. S. 528 

298, 322 
Cummings v. Chicago, 188 

U. S. 410 83 

V. Missouri, 4 Wall. 277 

184, 185, 187, 188 
V. National Bank, 101 
U. S. 153 51 

Cunningham v. M. & B. E., 

109 II. S. 446 260 
Curran v. Arkansas, 15 How. 

304 169, 262 

Curtis V. Whitney, 13 Wall. 68 144 
Ex parte, 106 U. S. 371 19 
C. & A. E. V. W. F. Co., 108 - 

U. S. 18 283 

V. W. F. Co., 119 U. S. 
615 229, 230, 282 

C. & B. Co. V. New Orleans, 

99 U. S. 97 45 



TABLE OF CASES CITED. 
The references are to the pages. 



XIX 



C. & C. B. Co. V. Kentucky, 

154 U. S. 204 

66, 70, 84, 169 
C. & G. T. Ey. V. Wellman, 

143 U. S. 339 101a, 278 
C. & L. T. E. Co. V. Sandford, 

164 U. S. 578 

53, 101a, 168, 174, 175 

178, 304, 314, 315 
C. & N. W. Ey. V. Chicago, 

164 U. S. 454 224 

C. & O. Ey. V. Kentucky, 179 

U. S. 388 78, 98 

Daniel BaU, The, 10 Wall. 

557 68, 77, 82, 209 

D'Arcy v. Ketchum, 11 How. 

165 284 
Darrington v. Bank of Ala- 
bama, 13 How. 12 190 

Dartmouth College v. Wood- 
ward, 4 Wheat. 518 

147, 170, 178 
Davenport Bank v. Davenport, 

123 U. S. 83 49 

Davidson v. New Orleans, 96 

U. S. 97 247, 277 

Davis V. Beason, 133 U. S. 333 309 
V. Burke, 179 U. S. 399 

225, 274 
V, Elmira Savings Bank, 

161 U. S. 275 271 

V. Gray, 16 Wall. 203 

161, 259, 263 
V. Massachusetts, 167 U. 

S. 43 280 

V. Packard, 7 Pet. 276 269 

Day V. Gallup, 2 Wall. 97 273 

D. C. & I. Co. V. Barton, 183 

U. S. 23 304 

Debs, In re, 158 U. S. 564 

4, 126, 246, 274 
In re, 64 Fed. 724 126 

Decatur v. Paulding, 14 Pet. 

497 229 

Delaware E. Tax Case, 18 

Wall. 206 53, 56, 102, 174 
De Lima v. Bidwell, 182 U. S. 

I 11, 19, 27, 38, 229, 238 
Delmas v. Ins. Co., 14 Wall. 

661 140, 141, 146 

Den V. Jersey Co., 15 How. 426 71 
Dennick v. E. Co., 103 U. S. 

II 210 
Denny v. Bennett, 128 TJ. S. 

489 139, 153 

V. Pironi, 141 U. S. 121 215 
Dent V. West Virginia, 129 U. 

S. 114 278 



Deposit Bank v. Frankfort, 

191 U. S. 499 289 

De Saussure v. Gaillard, 127 

U. S. 216 224 

De Treville v. Smalls, 98 U. S. 

517 35 

Detroit v. D. C. S. E., 184 U. 

S. 368 139, 178 

V. Parker, 181 U. S. 399 

273, 277, 316 
Dewey v. Des Moines, 173 U. 

S. 193 22, 24, 224, 273 

D. G. Co. V. U. S. G. Co., 187 

U. S. 611 140, 304, 306 
Dial V. Eeynolds, 96 U. S. 340 266 
Dietzseh v. Huidekoper, 103 

U. S. 494 267 

Diggs V. Wolcott, 4 Cr. 179 266 
D. M. Co. V. Ontonagon, 188 

V. S. 82 55 

Dobbins v. Commissioners, 16 

Pet. 435 44 

Dodge V. Woolsey, 18 How. 

331 204 

Doe V. Beebe, 13 How. 25 299 

Dooley v. Pease, 180 U. S. 126 

210, 241, 243 
V. Smith, 13 Wall. 604 21 

V. V. S., 182 U. S. 222 11, 27 
V. V. S., 183 U. S. 151 

11, 19, 28, 73 
Dorr V. U. S., 195 U. S. 138 

11, 12 
Douglas V. Kentucky, 168 U. S. 

488 141, 178 

Douglass V. County of Pike, 

101 U. S. 677 139 

Dow V. Beidelman, 125 U. S. 

680 101a, 278, 315 

Downes v. Bidwell, 182 U. S. 
244 

1, 4, 11, 13, 19, 27, 37, 234 
Downham v. Alexandria Coun- 
cil, 10 Wall. 173 

55, 92, 302 
Doyle V. C. I. Co., 94 U. S. 

535 307 

Dred Scott v. Sandford, 19 
How. 393 

8, 215, 231, 291, 292 
Drehman v. Stifle, 8 Wall. 595 144 
Dreyer v. Illinois, 187 U. S. 

71 224, 252, 280 

Ducat V. Chicago, 10 Wall. 410 

63, 305, 306 
Duncan v. Darst, 1 How. 301 271 
V. Missouri, 152 U. S. 377 

184, 187, 274, 275, 298, 322 
In re, 139 V. S. 449 225, 282 



XX 



TABLE OF CASES CITED. 
The references are to the pages. 



Dupasseur v. Eochereau, 21 

Wall. 130 289 

Durousseau v. U. S., 6 Or. 307 223 
Dynes v. Hoover, 20 How. 65 244 

D. & H, C. Co. V. Pennsylvania, 

156 U. S. 200 22, 23, 43 

Eagle, The, 8 Wall. 15 209 

Earle v. Conway, 178 IT. S. 

456 271, 272 

V. Pennsylvania, 178 U. S. 
449 272 

East Hartford v. H. Bridge 

Co., 10 How. 511 170 

Easton v. Iowa, 188 U. S. 220 

238, 269 

E. B. & L. Assn. v. Ebaugh, 

185 U. S. 114 282 

V. Williamson, 189 U. S. 

122 282 

Edwards v. Elliott, 21 Wall. 

532 208, 243, 255, 266, 269 
V. Kearzey, 96 U. S. 595 138 
Effinger v. Kenney, 115 U. S. 

566 146 

B. I. Co. V. Ohio, 153 U. S. 446 176 
Eidman v. Martinez, 184 U. S. 

578 40 

Eilenbecker v. Plymouth 

County, 134 U. S. 31 

274, 298 
Eldridge v. Trezevant, 160 U. 

S. 452 278, 280, 317 

Elk V. Wilkins, 112 U. S. 94 291 
E. L. L. Co. V. Brown, 155 

U. S. 488 215, 225 

EUenwood v. M. C. Co., 158 

U. S. 105 210, 243 

Elliott V. Peii-sol, 1 Pet. 328 284 
Elmendorf v. Taylor, 10 

Wheat. 152 282 

Emblen v. L. L. Co., 184 U. S. 

660 253 

Embry v. Palmer, 107 U. S. 

3 18, 289 

Emert v. Missouri, 156 IT. S. 

296 55, 90, 92, 303 

Ennis v. Smith, 14 How. 400 

229, 285 
Erb V. Morasch, 177 U. S. 584 

99, 282, 283 
Erie Ry. v. Penna., 21 Wall. 

492 53, 174 

Erwin v. Lowry, 7 How. 172 

267, 272 
E. Ey. V. Pennsylvania, 15 

Wall. 282 58, 105 

Escanaba Co. v. Chicago, 107 

U. S. 678 84, 100 



Essex Pub. Eoad Board v. 

Skinkle, 140 U. S. 334 170 
Etheridge v. Sperry, 139 U. S. 

266 224, 270, 272 

E. T., V. & G. Ey. v. I. C. C, 

181 U. S. 1 113 

Eustis V. BoUes, 150 U. S. 

361 224 

Evansville Bank v. Britton, 

105 U. S. 322 51 

Ewell V. Daggs, 108 U. S. 143 143 
Ex parte Bain, 121 U. S. 1 247 
Bollman and Swartwout, 

4 Cr. 75 243, 250 

Boyd, 105 U. S. 647 210 

Christy, 3 How. 292 268 

Clarke, 100 U. S. 399 296 

Crow Dog, 109 U. S. 556 136 
Curtis, 106 U. S. 371 19 

Ferry Co., 104 U. S. 519 

208, 243 
Fonda, 117 U. S. 516 18 

Garland, 4 Wall. 333 185, 188 
Gordon, 104 U. S. 515 208, 243 
Jackson, 96 U. S. 727 18 

Kearney, 7 Wheat. 38 250 

Lange, 18 Wall- 163 250, 252 
Madrazzo, 7 Pet. 627 261 

Mason, 105 U. S. 696 244 

McNiel, 13 Wall. 236 76, 266 
Milligan, 4 Wall. 2 

244, 245, 250 
Parks, 93 U. S. 18 250 

Eeggel, 114 U. S. 642 193, 195 
Eoyall, 117 U. S. 241 18, 225 
Siebold, 100 U. S. 371 296 

Terry, 128 U. S. 289 250, 254 
Virginia, 100 U. S. 339 

295 313 
Wall, 107 U. S. 265 ' 247 

Wells, 18 How. 307 250 

Wilson, 114 U. S. 417 247 

Yarbrough, 110 U. S. 651 

18, 19, 250, 293, 296 
Express Co. v. Kountze Bros., 

8 Wall. 342 303 

Eyster v. Gaff, 91 U. S. 521 268 

Fairbank v. U. S., 181 U. S. 

283 28, 30, 64, 74, 232 

Fallbrook Irr. Dist. v. Brad- 
ley, 164 U. S. 112 

24, 277, 282 
Fanning v. Gregoire, 16 How. 

524 82, 100, 175 

Fargo V. Hart, 193 U. S. 490 

40, 57, 103 
V. Michigan, 121 U. S. 
230 58, 105 



TABLE OF CASES CITED. 
The references are to the pages. 



XXI 



Farmers & Mechanics ' Bank v. 

Smith, 6 Wheat. 131 

147, 150, 152 
Farrington v. Tennessee, 95 

U. S. 679 162 

F. C. & P. E. V. Keynolds, 183 

U. S. 471 316, 321 

Felsenheld v. U. S., 186 U. S. 

126 70 

Ferguson v. Harwood, 7 Cr. 

408 283 

Ferry Co., Ex parte, 104 U. S. 

519 208, 243 

Fertilizing Co. v. Hyde ParK, 

97 U. S. 659 176, 178 

F.-G. L. S. Co. V. Springer, 185 

U. S. 47 206 

Ficklen v. Shelby County, 145 

U. S. 1 55, 92, 303 

Field V. B. A. P. Co., 194 U. S. 

618 277, 316 

Fielden v. Illinois, 143 U. S. 

452 280 

Filhiol V. Maurice, 185 U. S. 

108 206 

Finney v. Guy, 189 U. S. 335 282 
First National Bank v. Ayers, 

160 U. S. 660 50 

First Nat. Bank of Louisville 

V. Louisville, 174 U. S. 

438 51 

Fischer v. St. Louis, 194 U. S. 

361 279, 321 

Fisk V. Jefferson Police Jury, 

116 U. S. 131 

138, 148, 154, 179 
Fitts V. McGhee, 172 U. S. 516 263 
Fleming v. Page, 9 How. 603 26 
Fletcher v. Peck, 6 Cr. 87 

147, 160, 182, 184, 232 
Florida v. Georgia, 11 How. 

293; 11 id. 478 191, 211 
F. L. E. V. Lowe, 114 U. S. 

525 46 

F. M. L. Assn. v. Mettler, 185 

U. S. 308 313, 318 

Fok Yung Yo v. IJ. S., 185 U. 

S. 296 229, 297 

Fonda, Ex parte, 117 U. S. 516 18 
Fong Yue Ting v. U. S., 149 

U. S. 698 19, 238, 254, 297 
Forbes v. Gracey, 94 IJ. S. 

762 46 

Ford V. D. & P. L. Co., 164 

U. S. 662 24, 53, 166, 167 
V. Surget, 97 U. S. 594 

139, 191 
Forsyth v. Hammond, 166 U. 

S. 506 282 



Foster v. Davenport, 22 How. 

244 77, 79, 101 

V. Kansas, 112 U. S. 201 100 
V. Master and Wardens of 

New Orleans, 94 U. S. 

246 75 

V. Neilson, 2 Pet. 253 238 
Fourteen Diamond Eings, 

Pepke, Claimant, v. 

U. S., 183 U. S. 176 

11, 27, 38 
Fouvergne v. New Orleans, 18 

How. 470 210 

Fowler v. Lindsey, 3 Dall. 411 262 
Fox V. Ohio, 5 How. 432 269 

Francis Wright, The, 105 U. 

S. 381 223 

Frederich, In re, 149 U. S. 70 

215, 225 
Frederickson v. Louisiana, 23 

How. 445 239 

Freeborn v. Smith, 2 Wall. 160 183 
Freeland v. Williams, 131 U. 

S. 405 148, 154, 274 

Freeman v. Alderson, 119 U. 

S. 185 285 

V. Howe, 24 How. 450 271, 272 
Fremont v. U. S., 17 How. 542 230 
French v. B. A. P. Co., 181 U. 

S. 324 24, 277, 316 

V. Hay, 22 Wall. 250 267 

Fretz V. Bull, 12 How. 466 209 
Friedlander v. T. & P. Ey., 

130 U. S. 416 210, 243, 282 
Fritts V. Palmer, 132 U. S. 

282 308 

Furman v. Nichol, 8 Wall. 44 169 
F. W. Co. V. Freeport City, 180 

U. S. 587 

141, 169, 176, 177, 178 
F. & C. P. E. V. Eeynolds, 183 

U. S. 471 40, 41 

F. & M. Bank v. Smith, 6 

Wheat. 131 147, 150, 152 
F. & M. C. Co. V. Fitzgerald, 

137 U. S. 98 308 

F. & M. I. Co. V. Dobney, 189 

U. S. 301 313, 318 

Gableman v. P., D. & E. Ey., 

179 U. S. 335 206, 270 

Gaines v. Fuentes, 92 U. S. 10 210 
Gallup V. Schmidt, 183 U. S. 

300 273, 277 

Gantly v. Ewing, 3 How. 707 146 
Garland, Ex parte, 4 Wall. 333 

185, 188 
Garnett, In re, 141 U. S. 1 

207, 243 



XXll 



TABLE OF CASES CITED. 
The references are to the pages. 



G., C. & S. F. Ry. V. Ellis, 165 
U. S. 150 

278, 304, 313, 314 
V. Hefley, 158 U. S. 98 

101, 113, 217, 238 
Geer v. Connecticut, 161 U. S. 

519 72, 301 

Gelpeke v. Dubuque, 1 Wall. 

175 139, 242 

Gelston v. Hoyt, 3 Wheat. 246 

217, 228, 270 
Genesee Chief, The, v. Fitz- 

hugh, 12 How. 443 206, 209 
Geofroy v. Eiggs, 133 U. S. 

258 238 

Georgia v. Brailsford, 2 Dall. 

402 260 

V. Stanton, 6 Wall. 50 229 
Georgia, Governor of, v. Mad- 

razo, 1 Pet. 110 260, 261 
G. F. Co. V. Pennsylvania, 114 

U. S. 196 57, 82, 106 

Gibbons v. Ogden, 9 Wheat. 1 
15, 54, 62, 64, 66, 
69, 77, 89, 97, 234, 235 
Gibson v. Mississippi, 162 U. 

S. 565 184, 186, 295, 313 
V. U. S., 166 U. S. 269 253 
Giles V. Harris, 189 U. S. 475 

293, 294 
V. Teasley, 193 U. S. 146 

293, 295 
GUfillan V. V. C. Co., 109 U. S. 

401 143 

Gilman v. Philadelphia, 3 

Wall. 713 4, 84, 217 

V. Sheboygan, 2 Bl. 510 

24, 154 
Ginesi v. Cooper, 14 Ch. Div. 

601 237 

Giozza V. Tiernan, 148 U. S. 

657 41, 273, 298, 316, 317 
Gladson v. Minnesota, 166 U. 

S. 427 99, 101 

Glass V. Sloop Betsey, 3 Dall. 

6 284 

Glenn v. Garth, 147 U. S. 360 282 
Glidden v. Harrington, 189 U. 

S. 255 277 

Glide, The, 167 U. S. 606 209 

Godfrey v. Terry, 97 U. S. 171 215 
Gonzales v. Williams, 192 U. 

S. 1 298 

Good V. Martin, 95 U. S. 90 9 

Goodrich v. Detroit, 184 U. S. 

432 24 277 

Goodtitle v. Kibbe, 9 How. 471 299 
Goodwin v. C. M. I. Co., 110 

U. S. 1 307 



Gordon v. U. S., 2 Wall. 561 223 
Ex parte, 104 U. S. 515 

208, 243 
Governor of Georgia v. Mad- 

razo, 1 Pet. 110 260, 261 
Grace v. A. C. I. Co., 109 

U. S. 278 215 

Grand Lodge v. New Orleans, 

166 U. S. 143 164 

Gray v. Connecticut, 159 U. S. 

74 298 

Green v. Biddle, 8 Wheat. 1 

142, 161, 169 
V. Creighton, 23 How. 90 271 
In re, 134 U. S. 377 296 

Greenwood v. Freight Co., 105 

U. S. 13 165 

Grisar v. McDowell, 6 Wall. 

363 264 

Gross V. U. S. Mtge. Co., 108 

U. S. 477 143, 279 

Groves v. Slaughter, 15 Pet. 

449 292, 299 

G. R. & B. Co. V. Smith, 128 

U. S. 174 175, 176, 177 
G. R. & I. Ry. V. Osborn, 193 

U. S. 17 174, 175, 178 

G. S. F. H. Co. V. Jones, 193 

U. S. 532 240, 280 

G. S. & L. S. V. Dormitzer, 

192 U. S. 125 284, 286 

Guarantee Co. v. Board of 

Liquidation, 105 U. S. 

622 144 

Gundling v. Chicago, 177 U. S. 

183 322 

Gunn V. Barry, 15 Wall. 610 

138, 146 
Gunnison County Comrs. v. 

Rollins, 173 U. S. 255 

148, 149 
Gut V. The State, 9 Wall. 35 186 
Guthrie Nat. Bank v. Guthrie, 

173 U. S. 528 256 

Guy V. Baltimore, 100 IT. S. 

434 55, 87, 90, 302 

G.-W. & W. Co. V. Keyes, 96 

U. S. 199 206 

G. & B. S. M. Co. V. Radcliffe, 

137 U. S. 287 285 

G. & S. I. R. V. Hewes, 183 

U. S. 66 

53, 140, 150, 
162, 164, 165, 167 

Hackett v. Ottawa, 99 U. S. 

86 25 

Hagan i;. Lucas, 10 Pet. 400 

267, 272 



TABLE OF CASES CITED. 
The references are to the pages. 



XXlll 



Hagar v. Eeelamation District, 

111 U. S. 701 20, 277 

Hagood V. Southern, 117 IT. S. 

52 260 

Haines v. Carpenter, 91 U. S. 

254 266 

Hale V. Akers, 132 U. S. 554 224 
V. Lewis, 181 U. S. 473 224 
HaU V. De Cuir, 95 U. S. 

485 78 

V. Wisconsin, 103 U. S. 5 169 
Hallinger v. Davis, 146 U. S. 

314 274 

Hamilton v. Dillin, 21 Wall. 

73 18 

V. v., S. & P. E., 119 U. 

S. 280 84 

Hamilton Co. v. Massachu- 
setts, 6 Wall. 632 45 
Hammond -;;. Johnston, 142 

U. S. 73 224 

Hampton v. McConnel, 3 

Wheat. 234 283 

Hancock Nat. Bank v. Par- 

num, 176 U. S. 640 288 
Hanford v. Davies, 163 U. S. 

273 139, 140 

Hanley v. Donoghue, 116 U. S. 

1 230, 284 

V. K. C. S. Ey., 187 U. S. 

617 68, 102 

Hanover Nat. Bank v. Moyses, 

186 U. S. 181 138, 251, 274 
Hans V. Louisiana, 134 U. S. 

1 181, 205, 262, 263 

Hans Nielsen, Petitioner, 131 

U. S. 176 250 

Hardin v. Jordan, 140 U. S. 

371 72 

Hare v. L. & N. E., 2 J. & H. 

Ch. 80 131 

Harkrader v. Wadley, 172 U. 

S. 148 225, 266, 272 

Harman v. Chicago, 147 U. S. 

396 23, 87, 106 

Harris v. Dennie, 3 Pet. 292 270 
V. Hardeman, 14 How. 

334 273, 284 

Hartman v. G-reenhow, 102 

U. S. 672 169 

Hauenstein v. Lynham, 100 

U. S. 483 238 

Havemeyer v. Iowa County, 3 

Wall. 294 139 

Haver v. Taker, 9 Wall. 32 239 
Hawaii v. Mankichi, 190 U. S. 

197 12, 13 

Hawker v. New York, 170 U. 

S. 189 185, 187 



Hawthorne v. Calef, 2 Wall. 

10 147 

Hayburn's Case, 2 Dall. 409 

221, 223 
Hayes v. Missouri, 120 U. S. 

68 320 

V. Pratt, 147 U. S. 557 210 
Hays V. P. M. S. S. Co., 17 

How. 596 57, 103, 106 

H. Bridge Co. v. Henderson 

City, 141 U. S. 679 140 
V. Henderson City, 173 

U. S. 592 278 

Head v. A. Mfg. Co., 113 U. S. 

9 277 

V. University, 19 Wall. 

526 180 

Head Money Cases, The, 112 

U. S. 580 

23, 36, 40, 102, 238 
Heidritter v. Elizabeth Oil- 
Cloth Co., 112 U. S. 

294 272 

Henderson v. Mayor of N. Y., 

92 U. S. 259 57, 105, 237 
Hennington v. Georgia, 163 

U. S. 299 98 

Hepburn v. Griswold, 8 Wall. 

603 20 

V. The School Directors, 

23 Wall. 480 50, 51 

H. F. L Co. V. C, M. & St. P. 

Ey., 175 IT. S. 91 

210, 241, 243 
H. G. L. Co. V. Hamilton City, 

146 U. S. 258 148, 165, 175 
Hibben v. Smith, 191 U. S. 

310 277 

Hickey's Lessee v. Stewart, 3 

How. 750 284 

H. I. Co. V. Augusta, 93 IT. S. 

116 53, 174 

V. Morse, 20 Wall. 445 307 
V. New York, 134 U. S. 

594 45, 316 

Higgins V. Butcher, Yelv. 89 208 
Hills V. Exchange Bank, 105 

U. S. 319 51 

Hilton V. Guyot, 159 U. S. 113 281 
Hine, The, v. Trevor, 4 Wall. 

555 208, 209, 269 

Hinson v. Lott, 8 Wall. 148 

55, 92, 302 
H. M. L. I. Co. V. Warren, 181 

U. S. 73 320 

Hobart v. Drogan, 10 Pet. 108 

209, 266 
Hodgson V. Vermont, 168 U. S. 

262 274 



XXIV 



TABLE OP CASES CITED. 
The references are to the pages. 



Holden v. Hardy, 169 U. S. 366 

248, 274, 278, 298, 314, 319 
V. Minnesota, 137 U. S. 
483 187, 280 

Holland v. Challen, 110 U. S. 

15 243 

Hollingsworth v. Virginia, 3 

Call. 378 258 

HoUins V. B. C. & I. Co., 150 

U. S. 371 243, 265 

Holmes v. Jennison, 14 Pet. 

540 191, 292, 299 

V. Walton, 9 N. J. L. 427 233 
Holt V. I. Mfg. Co., 176 U. S. 

68 206, 270 

Holyoke Co. v. Lyman, 15 

Wall. 500 166 

Home Ins. Co. v. Augusta, 93 

U. S. 116 53, 174 

V. New York, 134 U. S. 
594 45 

Hooe V. Jamieson, 166 U. S. 

395 210 

Hooker v. Burr, 194 U. S. 415 

143, 146 
V. Los Angeles, 188 U. S. 
314 224, 276, 277 

Hooper v. California, 155 U. 

S. 648 63, 304, 306 

Hopkins v. McLure, 133 U. S. 

380 224 

V. U. S., 171 U. S. 578 

67, 123, 125, 128 
Hopt V. People, 104 U. S. 631 251 
V. Utah, 110 U. S. 574 

186, 251 
V. Utah, 114 U. S. 488, 
120 id. 430 251 

Hornbuckle v. Toombs, 18 

Wall. 648 9 

Horner v. U. S., 143 U. S. 570 238 
Hornthall v. The Collector, 9 

Wall. 560 215 

Houston V. Moore, 5 Wheat. 1 

4, 217, 244, 268 
Howard v. De Cordova, 177 

U. S. 609 285 

V. Fleming, 191 U. S. 126 

224, 258, 322 
V. U. S., 184 U. S. 676 206 
Hoyt V. Sprague, 103 U. S. 

613 299 

H. S. M. Co. V. New York, 143 
U. S. 305 

304, 305, 306, 315 
Hughes V. Edwards, 9 Wheat. 

489 238 

Huling V. K. V. Ry. & Imp. 

Co., 130 U. S. 559 277 



Humphrey v. Pegues, 16 Wall. 

244 162, 163, 167 

Hunt V. Hunt, 131 U. S. clxv 148 
V. Palao, 4 How. 589 223 

Huntington v. Attrill, 146 U. 

S. 657 288 

Hurtado v. California, 110 

U. S. 517 274 

Huse V. Glover, 119 U. S. 543 

23 84 87 
Hyatt V. People, 188 U. S.' 691 195 
Hyde v. Stone, 20 How. 170 

210 271 
Hylton V. U. S., 3 Ball. 171 3o', 34 
H. & T. C. E. V. Texas, 177 

U. S. 66 

141, 148, 149, 190, 215, 232 
H. & T. C. E. V. Texas, 170 

U. S. 243 139, 161 

I. C. C. -!;. A. M. Ey., 168 

U. S. 144 110, 112 

V. A., T. & S. F. E., 149 

U. S. 264 110 

V. Baird, 194 U. S. 25 113 
V. Brimson, 154 U. S. 447 

109, 110 
V. B. & O. E., 145 U. S. 

263 111 

V. C, N. O. & T. P. Ey., 

167 U. S. 479 110 

V. D., G. H. & M. Ey., 167 

U. S. 633 111 

V. L. & N. E., 190 U. S. 
273 113 

I, C. E. V. Adams, 180 U. S. 28 263 
V. Chicago, 176 U. S. 646 141 
V. Decatur, 147 U. S. 190 24 
V. Illinois, 146 U. S. 387 

71, 148, 149 
V. Illinois, 163 U. S. 142 

99, 101 
V. Illinois, 184 U. S. 77 

71, 149 
I. C. Ey. V. Iowa, 160 U. S. 389 

273, 274, 276 
I. C. & I. Co. V. Gibney, 160 

U. S. 217 215 

I. L. I. Co. V. Lewis, 187 U. S. 

335 313, 318 

Indiana v. Kentucky, 136 U. S. 

479 211 

In re Ayers, 123 U. S. 443 180, 261 
Blake, 175 U. S. 114 267 

Brown, 135 U. S. 701 143 
Chapman, 166 U. S. 661 18 
Converse, 137 U. S. 624 276 
Cooper, 143 U. S. 472 228 

Coy, 127 U. S. 731 296 



TABLE OF CASES CITED. 
The references are to the pages. 



XXV 



In re Debs, 158 U. S. 564 

4, 126, 246, 274 
Debs, 64 Fed. 724 126 

Duncan, 139 TJ. S. 449 225, 282 
Frederich, 149 U. S. 70 

215 225 
Garnett, 141 U. S. 1 20 i', 243 
Green, 134 U. S. 377 296 

Hans Nielsen, 131 U. S. 

176 250 

Kemmler, 136 U. S. 436 

257, 273, 298 
Lennon, 166 U. S. 548 206 
Lockwood, 154 U. S. 116 298 
Loney, 134 U. S. 372 

215, 225, 270 
Manning, 139 U. S. 504 

276, 322 
McKenzie, Petitioner, 180 

U. S. 536 250 

Neagle, 135 U. S. 1 

18, 19, 206, 
215, 225, 266, 270 
Quarles and Butler, 158 

U. S. 532 19 

Eahrer, 140 U. S. 545 96 

Eapier, 143 U. S. 110 18, 309 
Eoss, 140 TJ. S. 453 19, 246 
Shibuya Jugiro, 140 U, S. 

291 313 

Swan, 150 U. S. 637 250 

Tyler, 149 U. S. 164 272 

Watts and Sachs, 190 U. 

S. 1 266 

Iowa V. Illinois, 147 U. S. 1 211 

I. S. S. Co. V. Tinker, 94 U, S. 

238 44, 75 

Jackson v. Chew, 12 Wheat. 

153 241 

V. Lamphire, 3 Pet. 280 143 
Ex parte, 96 U. S. 727 18 
Jaehne v. New York, 128 U, S. 

189 187 

James v. Bowman, 190 U. S. 

127 293 

James Gray, The, v. The John 

Fraser, 21 How. 184 78, 100 
Japanese Immigrant Case, 189 

U. S. 86 19, 232, 251, 297 
Jefferson Branch Bank v. 
Skelly, 1 Bl. 436 

52, 141, 162, 175 
Jennings v. C. E. C. Co., 147 

U. S. 147 41, 43, 316 

Johnson v. N. Y. L. I. Co., 

187 U. S. 491 282 

V. Powers, 139 U. S. 156 

285, 288 



Johnson v. Eisk, 137 U. S. 300 224 
V. Sayre, 158 U. S. 109 

244, 247 
Jones V. Andrews, 10 Wall. 

327 215 

V. Brim, 165 U. S. 180 

274, 318 
V. Soulard, 24 How. 41 71 
V. U. S., 137 U. S. 202 

216 228 
Joplin V. S. M. L. Co., 191 

U. S. 150 175 

Juilliard v. Greenman, 110 

U. S. 421 4, 19, 21, 234 
Justices, The, v. Murray, 9 

Wall. 274 257 

Kansas v. Colorado, 185 U. S. 

125 212 

Kansas Indians, 5 Wall. 737 45 
Kate, The, 164 U. S. 458 208 

Kauffman v. Wooters, 138 

U. S. 285 273 

Kearney, Ex parte, 7 Wheat. 

38 250 

Keith V. Clark, 97 U. S. 454 

2, 138, 169 
Kelley v. Ehoads, 188 U. S. 1 

55 57 71 
Kellv V. Pittsburgh, 104 u'. S. ' 

78 24, 247, 277 

Kemmler, 7?i re, 136 U. S. 436 

257 273 298 
Kendall v. U. S., 12 Pet. 52l' 229 
Kennard v. Nebraska, 186 

U. S. 304 206 

Kennett v. Chambers, 14 How. 

38 228 

Kentucky v. Dennison, 24 How. 

66 193, 194, 204, 213, 260 
Kentucky E. Tax Cases, 115 

U. S. 321 277, 316 

Kepner v. U. S., 195 U. S. 100 

251 252 
Keyes v. V. S., 109 U. S. "336 244 
K. I. Co. V. Harbison, 183 

U. S. 13 176, 279 

Kidd V. Alabama, 188 U. S. 

730 41, 306, 316 

V. Pearson, 128 U. S. 1 278 
Kilbourn v. Thompson, 103 

U. S. 168 18 

Kimmish v. Ball, 129 U. S. 217 

81, 300 
King V. MuUins, 171 U. S. 404 

40, 277 
V. Portland, 184 U. S. 61 

24, 277 
Kirby v. U. S., 174 U. S. 47 255 



XXVI 



TABLE OF CASES CITED. 
The references are to the pages. 



Kirtland v. Hotchkiss, 100 

U. S. 491 23, 41, 42 

Knatchbull v. Hallett, 13 Ch. 

Div. 712 237 

Knowles v. G. & C. Co., 19 

Wall. 58 283, 287 

Knowlton v. Moore, 178 U. S. 

41 31, 36 

Knox V. Exchange Bank, 12 

Wall. 379 140 

Koenigsberger i;. R. S. M. Co., 

158 U. S. 41 210 

Kohl V. U. S., 91 U. S. 367 19 
Koshkonong v. Burton, 104 

U. S. 668 143, 146 

K. P. E. V. A., T. & S. F. E., 

112 U. S. 414 206 

Kreiger v. Shelby E., 125 U. S, 

39 140 

Kring v. Missouri, 107 U. S. 

221 184, 185 

Krippendorf v. Hyde, 110 

U. S. 276 273 

K. W. Co. V. Knoxville, 189 

U. S. 434 140, 178, 278 
K. W. P. Co. V. G. B. & M. C. 

Co., 142 U. S. 254 

215, 277, 278 
K. & H. Bridge Co. v. Illi- 
nois, 175 U. S. 626 54 85 
K. & W. E. V. Missouri, 152 

U. S. 301 53, 150, 174 

Laing v. Eigney, 160 U. S. 

531 282 

Lake County v. Grraham, 130 

U. S. 674 148, 149, 150 

V. EoUins, 130 U. S. 662 

139, 148, 149 
Lammon v. Feusier, 111 U. S. 

17 273 

Lampasas v. Bell, 180 U. S. 

276 206, 228 

Landes v. Brant, 10 How. 348 283 
Lane County v. Oregon, 7 

Wall. 71 20 

Lange, Ex parte, 18 Wall. 163 

250, 252 
Langford v. U. S., 101 U. S. 

341 3 

Lascelles v. Georgia, 148 U. S. 

537 194 

L. A. S. M. Co. V. U. S., 175 

U. S. 423 228 

Lawler v. Walker, 14 How. 149 215 
Lawton v. Steele, 152 U. S. 

133 274 

L. C. Co. V. McCreery, 141 

U. S. 475 272 



L., C. & C. E. V. Letson, 2 

How. 497 262, 303 

League v. De Young, 11 How. 

185 138, 143 

V. Texas, 184 U. S. 156 

40, 182, 183, 277 
Leeper v. Texas, 139 U. S. 462 

273, 282 
Legal Tender Cases, 12 Wall. 

457 19, 20, 232 

Leigh V. Green, 193 U. S. 79 277 
Leisy v. Hardin, 135 U. S. 100 

69, 91, 94, 96, 100 
Leloup V. Port of Mobile, 127 

U. S. 640 56, 135 

Lem Moon Sing v. U. S., 158 

U. S. 538 19 

Lennon, In re, 166 U. S. 548 206 
Lent V. Tillson, 140 U. S. 316 

276, 277 
Leon V. Galceran, 11 Wall. 185 269 
Leovy v. U. S., 177 U. S. 621 

82, 84 
Leroux v. Hvdson, 109 U. S. 

468 266 

Lessee of Hickey v. Stewart, 3 

How. 750 284 

L. G. Co. V. C. G. Co., 115 

U. S. 683 169 

L. G. L. Co. V. Murphy, 170 

U. S. 78 177 

License Cases, 5 How. 504 

65, 95, 100 
License Tax Cases, 5 Wall. 462 

26, 53, 70, 174 
L. I. Co. V. French, 18 How. 

404 284, 286, 306 

V. Massachusetts, 10 Wall. 

566 63, 303, 305, 306 

Lincoln v. Power, 151 U. S. 

436 265 

Lincoln County v. Luning, 133 

U. S. 529 262 

Lionberger v. Eouse, 9 Wall. 

468 49 

Li Sing V. U. S., 180 U. S. 

486 297 

Livingston v. M. I. Co., 6 Cr. 

274 229 

V. Moore, 7 Pet. 469 182, 183 
V. Story, 9 Pet. 632 243 

L. I. W. Co. V. Brooklyn, 166 

U. S. 685 176, 277 

Lloyd V. Matthews, 155 TJ. S. 

222 282 

L., N. A. & C. Ey. -;;. L. T. Co., 

174 U. S. 552 303, 305 

L., N. O. & T. Ey. v. Missis- 
sippi, 133 U. S. 587 78, 98 



TABLE OF CASES CITED. 
The references are to the pages. 



xxvu 



Loan Assn. v. Topeka, 20 

Wall. 655 24 

Locke V. New Orleans, 4 Wall. 

172 183 

Lockwood, In re, 154 U. S. 116 298 
Loeb V. Colmnbia Township 

Trustees, 179 U. S. 472 139 
Logan V. U. S., 144 U. S. 263 

4 19 
Loney, In re, 134 U. S. 372 

215, 225, 270 
Looker v. Maynard, 179 U. S. 

46 165 

Lord V. S. S. Co., 102 U. S. 

541 68, 207 

Los Angeles v. L. A. W. Co., 
177 U. S. 558 

148, 169, 178 
Lottawanna, The, 21 Wall. 558 

207, 208, 243, 266 
Lottery Case, 188 U. S. 321 

64 119 

Loughborough v. Blake, 5 

Wheat. 317 9, 18, 27, 37 
Louisiana v, Jumel, 107 U. S. 

711 260, 261 

V. Mayor of New Orleans, 
109 U. S. 285 

147, 148, 154, 275 
V. New Orleans, 102 U. S. 

203 144, 180 

V. Pilsbury, 105 U. S. 

278 148, 153, 155 

V. Steele, 134 U. S. 230 

260, 262 
V. Texas, 176 U. S. 1 212 

Low V. Austin, 13 Wall. 29 43, 88 
Lowe V. Kansas, 163 U. S. 81 

274 318 
L. S. & M. S. Ey. V. Ohio, 165 

IT. S. 365 83, 84 

V. Ohio, 173 U. S. 285 99 

V. Smith, 173 U. S. 684 

101a, 278, 304, 313, 314 
Luther v, Borden, 7 How. 1 

228, 229, 327 
Luxton V. N. E. Bridge Co., 

153 TJ. S. 525 19 

L. V. E. V. Pennsylvania, 145 

U. S. 192 68, 104 

L. W. Co. V. Clark, 143 U. S. 1 165 
V. Easton, 121 U. S. 388 

139, 140 
Lyle V. Eichards, 9 S. &. E. 

356 235 

Lyng V. Michigan, 135 U. S. 

161 91 

L. & G. W. S. Co. V. P. L Co., 

129 U. S. 397 223, 229, 243 



L. & J. P. Co. V. Kentucky, 

188 U. S. 385 42, 277 

L. & N. E. V. Behlmer, 175 

U. S. 648 112 

V. Eubank, 184 U. S. 27 

101, 113 
V. Kentucky, 161 U. S. 

677 176 

V. Kentucky, 183 U. S. 
503 149, 175, 176, 177 

178, 279, 313, 315, 321 
V. Pabnes, 109 IT. S. 244 141 
V. Schmidt, 177 U. S. 230 

273 274 
V. Woodson, 134 U. S. 614 274 
L. & P. Co. V. Mullen, 176 

U. S. 126 23, 87, 89 

Machine Co. v. Gage, 100 U. S. 

676 55, 92, 302 

Mackin v. U. S., 117 IT. S. 

348 247 

Madrazzo, Ex parte, 7 Pet. 627 261 
Mager v. Grima, 8 How. 490 

22, 41 
Magoun v. I, T. & S. Bank, 170 

U. S. 283 40, 41, 316 

Maguire v. Card, 21 How. 248 209 
Mahon v. Justice, 127 U. S. 

700 194 

Maine v. G. T. Ey., 142 U. S. 

217 55, 56, 103, 305 

Mallett V. North Carolina, 181 

U. S. 589 184, 187, 320 

Manchester v. Massachusetts, 

139 U. S. 240 72 

Manning, In re, 139 U. S. 504 

276, 322 
Marbury v. Madison, 1 Cr. 137 
3, 204, 220, 
229, 231, 232, 234 
Markuson v. Boucher, 175 U. 

S. 184 225 

Marrow v. Brinkley, 129 U. S. 

178 276 

Marsh v. N., S. & Co., 140 U. S. 

344 206, 270 

Marshall v. B. & O. E., 16 

How. 314 303 

Marshall v. Holmes, 141 U. S. 

589 19, 225 

Martin v. B. & O. E., 151 U. S. 

673 19, 225 

V. Hunter's Lessee, 1 

Wheat. 304 

1, 2, 3, 7, 15, 19, 204, 

205, 217, 218, 234, 265 
V. Mott, 12 Wheat. 19 244 
V. Waddell, 16 Pet. 367 71 



XXVIU 



TABLE OF CASES CITED. 
The references are to the pages. 



Maryland v. B, & O. E,, 3 

How. 534 170 

Mason v. Haile, 12 Wheat. 370 143 

V. Missouri, 179 U. S. 328 293 

Ex parte, 105 U. S. 696 244 

Massachusetts v. W. U. T. Co., 

141 U. S. 40 54, 134 

Matthew v. A. P. of N. Y,, 

136 N. Y. 333 125 

Mattingly v. N. W. V. R., 158 

Tj g go 215 

Mattox V. u'. S., 156 U. S. 237 255 
Maxwell v. Dow, 176 U. S. 581 
234, 237, 274, 
298, 311, 320, 322 
V. Stewart, 22 Wall. 77 

283, 284, 286 
May V. New Orleans, 178 U. S. 

496 88 

Mayhew v. Thatcher, 6 Wheat. 

129 284 

Maynard v. Hill, 125 U. S. 190 148 
Mayor v. Cooper, 6 Wall. 247 

204, 206, 225 
V. Lord, 9 Wall. 409 267 

McAllister v. U. S., 141 U. S. 

174 8, 9 

McCall V. California, 136 U. S. 

104 56, 105, 305 

McClung V. SiUiman, 6 Wheat. 

598 270 

McCracken v. Hayward, 2 

How. 608 146 

McCray v. U. S., 195 U. S. 27 

26, 251 
McCready v. Virginia, 94 U. S. 

391 72, 299, 301, 302 

McCuUoch V. Maryland, 4 

Wheat. 316 

1, 3, 4, 15, 16, 
17, 22, 48, 65, 237 
McCullough V. Virginia, 172 

U. S. 102 141, 169 

McDonald v. Massachusetts, 

180 U. S. 311 187, 317 

McElmoyle v. Cohen, 13 Pet. 

312 283 

McElrath'i;. U. S., 102 U. S. 

426 209, 255 

McElvaine v. Brush, 142 U. S. 

155 298 

McGrahey v. Virginia, 135 

U. S. 662 169, 181, 263 
McGuire v. The Commonwealth, 

3 Wall. 387 47, 70 

McKane v. Durston, 153 U. S. 

684 301 

McKenzie, Petitioner, In re, 

180 U. S. 536 250 



McKim V. Voorhies, 7 Cr. 279 270 
McMillan v. McNeill, 4 Wheat. 

209 147, 150, 152 

McMillen v. Anderson, 95 U. S. 

37 277 

McNiel, Ex parte, 13 Wall. 

236 76, 266 

McNitt V. Turner, 16 Wall. 352 283 
McNulty V. Batty, 10 How. 72 223 
V. California, 149 U. S. 

645 274 

MePherson v. Blacker, 146 

U. S. 1 296 

M. C. P. & S. Co. V. Ins. Co. of 

N. A., 151 U. S. 368 112 
Medley, Petitioner, 134 U. S. 

160 185, 215, 225 
Meigs V. McClung 's Lessee, 9 

Cr. 11 264 

Memphis v. U. S., 97 U. S. 293 

148, 153, 155 
Memphis Bank v. Tennessee, 

161 U. S. 186 53, 164, 174 
Mercantile Bank v. New York, 

121 U. S. 138 49, 50 

Merchants & Manufacturers ' 
Bk. V. Pennsylvania, 
167 XJ. S. 461 

41, 52, 277, 316 
Meriwether v. Garrett, 102 

U. S. 472 24, 148, 155 

M. E. Ry. V. Minnesota, 134 

U. S. 467 177, 278 

Metcalf V. Watertown, 128 U. 

S. 586 206 

Metropolitan Bank v. Clag- 

gett, 141 U. S. 520 224 

M. G. Co. V. Shelby County, 

109 U. S. 398 41, 53, 174 
Middleton v. Mullica Town- 
ship, 112 U. S. 433 25 
Miller v. C. R., 168 U. S. 131 282 
i;. State, 15 Wall. 478 166 
Milligan, Ex parte, 4 Wall. 2 

244, 245, 250 

Mills V. Brown, 16 Pet. 525 215 

V. Duryee, 7 Cr. 481 283 

V. Green, 159 U. S. 651 228 

V. St. Clair County, 8 

How. 581 175 

Minder v. Georgia, 183 IT. S. 

559 274, 322 

Minnesota v. Barber, 136 U. S. 

313 81, 90, 237 

V. Brundage, 180 U. S. 

499 18, 225 

V. Hitchcock, 185 U. S. 

373 213 

r. N. S. Co., 184 U. S. 199 213 



TABLE OF CASES CITED. 
The references are to the pages. 



XXIX 



Minnesota v. N. S. Co., 194 

U. S. 48 126, 215 

Minor v. Happersett, 21 Wall. 

162 293, 311 

Minot V. P., W. & B. E., 18 

Wall. 206 53, 56, 102 

Mississippi v. Johnson, 4 Wall. 

475 229 

Mississippi Mills v. Cohn, 150 

U. S. 202 243, 265 

Missoiiri v. Andriano, 138 U. 

S. 496 204, 224 

V. Dockery, 191 U. S. 165 

41, 316 
V. Harris, 144 U. S. 210 140 
V. Illinois, 180 U. S. 208 212 
V. Iowa, 7 How. 660 191, 211 
V. Lewis, 101 U. S. 22 

275 322 
V. Walker, 125 U. S. 339 ' 169 
Mitchell V. Clark, 110 U. S. 633 265 
V. First Nat. Bank, 180 

U. S. 471 282 

V. Harmony, 13 How. 115 264 
V. Smale, 140 U. S. 406 

72 206 
M., K. & T. Ey. V. Haber, 169 

U. S. 613 81 

V. May, 194 U. S. 267 316 

V. McCann, 174 U. S. 580 99 

V. Missouri E. & W. 

Comrs., 183 U. S. 53 210 

M. L. I. Co. V. McGrew, 188 

U. S. 291 224 

M. N. Co. V. U. S., 148 U. S. 

312 253 

Mobile V. Watson, 116 U. S. 

289 148, 153, 155 

Mogul S. S. Co. V. McGregor, 

23 Q. B. D. 598 116 

Montague v. Lowry, 193 U. S. 

38 127 

Montalet v. Murray, 4 Cr. 46 215 
Montello, The, 20 WaU. 430 82, 209 
Montgomery v. Portland, 190 

U. S. 89 83 

Moore v. Greenhow, 114 U. S. 

338 145 

V. Illinois, 14 How. 13 269 
V. Missouri, 159 U. S. 673 

275, 298, 317 
V. U. S., 91 U. S. 270 235 
Moran v. Horsky, 178 U. S. 205 224 
V. New Orleans, 112 U. S. 

69 57, 106 

V. Sturges, 154 U. S. 256 

208, 209, 269, 272 
Morgan v. Louisiana, 93 U. S. 

217 52, 148, 150, 164 



Morgan v. Louisiana, 118 U. 

S. 455 24, 80 

V. Parham, 16 WaU. 471 

57, 106 
Morley v. L. S. & M. S. Ey., 
146 U. S. 162 

144, 146, 148, 154, 278 
Mormon Church v. U. S., 136 

U. S. 1 9, 10, 19, 251, 309 
Moses Taylor, The, 4 Wall. 411 

205, 208, 209, 217, 218, 269 
Motes V. U. S., 178 U. S. 458 255 
M. P. Ey. V. Humes, 115 U. S. 

512 100, 316 

V. Mackey, 127 U. S. 205 

100, 278, 304, 314, 315 
V. Nebraska, 164 U. S. 
403 278, 280 

M. S. Co. i;. Louisiana, 118 

U. S. 455 24, 80 

M. S. S. Co. V. McGregor, 23 

Q. B. D. 598 116 

M. T. Co. V. Mobile, 187 U. S. 

479 2, 72, 149, 299 

Mugler V. Kansas, 123 U. S. 

623 100, 237, 278, 298 

MuUer v. Dows, 94 U. S. 444 215 
Mumma v. The Potomac Co., 

8 Pet. 281 175 

Munn V. Illinois, 94 U. S. 113 

98, 278, 315 
Murdock v. Ward, 178 U. S. 

139 31, 36 

Murphy v. Eamsey, 114 U. S. 

15 9, 187 

Murray v. Charleston, 96 U. S. 

432 53, 169 

Murray's Lessee v. H. L. & I. 

Co., 18 How. 272 247, 250 
Myrick v. M. C. E., 107 U. S. 

102 242 

M. & L. E. V. C. E., 66 N. H. 

100 131 

M. & M. Bank v. Pennsylvania, 
167 IJ. S. 461 

41, 52, 277, 316 
M. & M, E. V. Ward, 2 Bl. 485 84 
M. & O. E. V. Tennessee, 153 

U. S. 486 52, 141, 162 
M. & St. L. E. V. Minnesota, 
186 U. S. 257 

101b, 313, 315 
V. Minnesota, 193 U. S. 
53 100, 279 

M. & St. L. Ey. V. Beekwith, 
129 U. S. 26 

100, 278, 304, 314, 316 
V. Emmons, 149 U. S. 364 

176, 316 



XXX 



TABLE OF CASES CITED. 
The references are to the pages. 



M. & St. L. Ey. V. Gardner, 

177 U. S. 332 175 

V. Herrick, 127 U. S. 210 

278, 304, 314, 315 

Nash V. Lull, 102 Mass. 60 270 
Natal V. Louisiana, 139 U. S. 

621 274, 321 

Nathan v. Louisiana, 8 How. 

73 55, 63 

National Bank v. Chapman, 

173 U. S. 205 49, 50 

V. Commonwealth, 9 Wall. 

353 47, 48 

V. V. S., 101 U. S. 1 31 

Nations v. Johnson, 24 How. 

195 273, 285 

N. B. Co. V. U. S., 105 U. S. 

470 83 

N. C. Ey. V. Maryland, 187 
U. S. 258 

53, 164, 165, 168, 174 
N., C. & St. L. Ey. V. Alabama, 
128 U. S. 96 

24, 98, 246, 278 
Neagle, In re, 135 U. S. 1 

18, 19, 206, 
215, 225, 266, 270 
Neal V. Delaware, 103 U. S. 

370 295 

Nebraska v. Iowa, 145 U. S. 

519 211 

Nelson v. St. Martin's Parish, 
111 U. S. 716 

148, 153, 155 
Nevada Bank v. Sedgwick, 104 

U. S. Ill 23 

New Hampshire v. Louisiana, 

108 U. S. 76 211, 261 

New Jersey v. New York, 5 

Pet. 284 211 

V. Wilson, 7 Cr. 164 52, 161 
V. Yard, 95 U. S. 104 

52, 162, 163, 165 
New Orleans v. Citizens' 
Bank, 167 U. S. 371 

53, 167, 174 
V. Morris, 105 U. S. 600 179 
V. N. O. W. W., 142 IT. S. 

79 148, 170 

V. Paine, 147 U. S. 261 229 
V. Stempel, 175 U. S. 309 

40, 41 
Newton v. Commissioners, 100 

V. S. 548 179 

New York v. Barker, 179 U. S. 

279 321 

V. Connecticut, 4 Ball. 1 211 
V. Eno, 155 U. S. 89 225 



New York v. Knight, 192 U. 

S. 21 56, 104 

V. Louisiana, 108 U. S. 

76 211, 261 

V. Miln, 11 Pet. 102 

78, 79, 101 
V. Eoberts, 171 U. S. 658 

54, 55, 304, 306, 315 
V. Squire, 145 U. S. 175 

176, 278, 317 
New York Indians, 5 Wall. 761 45 
N. F. & P. W. V. O. W. S. Co., 

183 U. S. 216 206, 289 

Nicol V. Ames, 173 U. S. 509 

31, 36, 232 
Nielsen, Petitioner, 131 TJ. S. 

176 250 

Nishimura Ekiu v. U. S., 142 

U. S. 651 297 

N. J. N. Co. V. Merchants' 

Bank, 6 How. 344 209 

N. M. B. & L. Assn. v. Brahan, 

193 U. S. 635 140, 224 

N. M. E. V. Maguire, 20 Wall. 

46 174 

N., M. & Co. V. Ohio, 3 How. 

720 97 

Noble V. U. E. L. E., 147 U. S. 

165 229 

Nobles V. Georgia, 168 U. S. 

398 274 

N. O. C. & L. E. V. New Or- 
leans, 143 U. S. 192 53, 174 
V. New Orleans, 157 U. S. 
219 142 

N. O. P. Inspectors v. Glover, 

160 U. S. 170 228 

N. O. G. Co. V. L. L. Co., 115 

U. S. 650 138, 169 

North Carolina v. Temple, 134 

U. S. 22 260, 262 

Northern Securities Case, 193 
U. S. 197 

64, 67, 122, 124, 
125, 127, 129, 131 
Norton v. Board of Comrs. of 
Brownsville, 129 U. S. 
479 148, 149 

V. Shelby County, 118 U. 
S. 425 204, 232 

Norwood V. Baker, 172 U. S. 

269 24, 277, 316 

N. O. W. Co. V. Louisiana, 185 

U. S. 336 140 

N. O. W. W. V. L. S. Co., 125 

U. S. 18 140 

V, Eivers, 115 U. S. 674 169 
N. P. E. V. Amato, 144 U. S. 

465 206 



TABLE OF CASES CITED. 
The references are to the pages. 



XXXI 



N. P. E. V. Colbum, 164 U. S. 

383 206 

V. Myers, 172 U. S. 589 46 
N. S. Co. V. U. S., 193 U. S. 197 
64, 67, 122, 124, 
125, 127, 129, 131 
Nugent V. Boyd, 3 How. 

426 268 

Nutting V. Massachusetts, 183 

U. S. 553 63, 304 

N. W. Co. V. Newbm-yport, 193 

U. S. 561 175 

N. Y., L. E. & W. E. V. Penn- 
sylvania, 153 U. S. 628 

22, 23, 43, 176, 304 
V. Pennsylvania, 158 U. S. 
431 55, 103 

N. Y. L. I. Co. V. Cravens, 178 

U. S. 389 63, 304, 306 

N. Y., N. H. & H. E. V. New 
York, 165 U. S. 628 

99 319 
N. Y. & N. E. E. i;. Bristol,' 

151 U. S. 556 165, 317 

N. & W. E. V. Johnson, 15 

Wall. 195 21 

V. Pendleton, 156 U. S. 
667 

53, 168, 174, 175, 176, 178 
V. Pennsylvania, 136 U. 
S. 114 56, 105, 304, 305 
N. & W. Ey. V. Sims, 191 U. S. 

441 55, 92 

Gates V. Nat. Bank, 100 U. S. 

239 242 

Ochiltree v. E. Co., 21 Wall. 

249 144 

Ogden V. Saunders, 12 Wheat. 

213 38, 147, 151, 

153, 173, 182, 237 
Ohio V. DoUison, 194 U. S. 445 

247, 275, 298, 317 
V. Thomas, 173 U. S. 276 

18, 215, 225, 238, 270 
O. I. Co. -;;. Daggs, 172 U. S. 

557 279, 303, 304, 314, 319 
Olcott V. The Supervisors, 16 

Wall. 678 25, 139 

O. L. I. & T. Co. V. Debolt, 16 

How. 416 139, 141, 175, 242 
O'Neil V. Vermont, 144 U. S. 

323 257 

O. O. Co. V. Indiana, 177 U. S. " 

190 278 

O. P. Co. V. Aiken, 121 U. S. 

444 23, 87 

Orr V. Gilman, 183 U. S. 278 

40, 41, 53, 166, 280, 316 



Osborn v. Bank of the U. S., 
9 Wheat. 738 17, 48, 

206, 215, 228, 258, 264 
V. Nicholson, 13 Wall. 654 310 
Osborne v. Coimty of Adams, 
106 U. S. 181, 109 id. 
1 24 

V. Florida, 164 U. S. 650 

56, 103 

V. Mobile, 16 Wall. 479 135 

Otis V. Parker, 187 U. S. 606 321 

Ottawa V. Carey, 108 U. S. 110 25 

V. National Bank, 105 U. 

S. 343 25 

O. W. Co. V. Oshkosh, 187 U. 

S. 437 140, 143, 144 

Owensboro v. O. W. S. Co., 

191 U. S. 358 175, 177 

Owensboro Nat. Bank v. 
Owensboro, 173 U. S. 
664 51 

Owings V. Hull, 9 Pet. 607 229, 283 
V. Speed, 5 Wheat. 420 138 
O. & M. E. V. Wheeler, 1 Bl. 

286 215, 303, 304 

Pace V. Alabama, 106 U. S. 

583 315 

V. Burgess, 92 U. S. 372 

29, 73 
Pacific Nat. Bank v. Mixter, 

124 U. S. 721 270 

Packet Co. v. Catlettsburg, 105 

U. S. 559 23, 87 

V. Keokuk, 95 U. S. 80 

23, 87, 233 
V. St. Louis, 100 U. S. 
423 23, 87 

Palmer v. McMahon, 133 U. S. 

660 49, 50, 51, 277 

Pana v. Bowler, 107 U. S. 529 242 
Parish v. Ellis, 16 Pet. 451 243 
Parkersbiu-g v. Brown, 106 

U. S. 487 24 

Parkinson v. U. S., 121 U. S. 

281 247 

Parks, Ex parte, 93 U. S. 18 250 
Parsons v. Bedford, 3 Pet. 

433 243, 255, 256 

V. C. & N. W. Ey., 167 
U. S. 447 111, 112 

Passaic Bridge Case, The, 3 

Wall. 782 84 

Passenger Cases, 7 How. 283 

54, 57, 66, 105 
Patterson v. Kentucky, 97 

U. S. 501 65, 70 

Patton V. Brady, 184 U. S. 

608 31, 206 



XXXll 



TABLE OF CASES CITED. 
The references are to the pages. 



Paul V. Virginia, 8 WaU. 168 

63, 300, 303, 304, 305, 306 
Paulsen v. Portland, 149 XJ. S. 

30 277 

Paup V. Drew, 10 How. 218 169 
Payne v. Hook, 7 Wall. 425 210 
P., C, C. & St. L. Ry. V. 
Backus, 154 U. S. 421 

40, 57, 277 
V. Board of Pub. Works, 
172 U. S. 32 54, 85 

P. Co. V. Adams, 189 U. S. 420 

56, 103 
See Packet Co. 
Peake v. New Orleans, 139 

U. S. 342 24 

Peale v. Phipps, 14 How. 368 

267, 272 
Pearce v. Texas, 155 U. S. 

311 195 
Pearsall v. G. N. Ey., 161 
U. S. 646 

142, 149, 165, 176, 177 
Pearson v. Yewdall, 95 U. S. 

294 255, 277 

Pease v. Peck, 18 How. 595 242 
Peck V. Jenness, 7 How. 612 

267, 272 
Peete v. Morgan, 19 Wall. 581 

44, 74, 81 
Peik V. C. & N. W. Ey., 94 

U. S. 164 98, 176 

Pel ton V. National Bank, 101 

U. S. 143 51 

Pennie v. Eeis, 132 U. S. 464 

179, 280 
Penniman's Case, 103 U. S. 

714 143 

Pennoyer v. McConnaughy, 

140 U. S. 1 263 

V. Neff, 95 U. S. 714 

249, 283, 285 
Pennsylvania v. W. & B. 
Bridge Co., 9 How. 
647, 11 id. 528 84 

V. W. & B. Bridge Co., 13 

How. 518 84, 239, 243 

V. W. & B. B. Co., 18 
How. 421 73, 83, 84 

Pennsylvania College Cases, 13 

Wall. 190 166 

People V. C. G. T., 107 U. S. 

59 57, 89, 105 

V. Commissioners, 104 TJ. 

S. 466 56, 63 

V. Commissioners of Taxes, 

2 Bl. 620 44 

V. Commissioners of Taxes, 
94 U. S. 415 51, 52, 150 



People V. Cook, 148 U. S. 397 

53, 164, 165, 168, 174 
V. The Commissioners, 4 

Wall. 244 48 

V. Weaver, 100 U. S. 539 

50, 51 
Pepke V. U. S., 183 U. S. 176 

11, 27, 38 
Permoli v. First Municipality, 

3 How. 589 299 

Perrine v. C. & D. C. Co., 9 

How. 172 175 

Pervear v. The Commonwealth, 

5 Wall. 475 47, 70, 257 
Petit V. Minnesota, 177 U. S. 

164 320 

P. Ex. Co. V. Seibert, 142 U. S. 

339 41, 56 

P. F. A. V. New York, 119 

U. S. 110 63, 304, 305, 306 
P. F. & M. I. Co. V. Tennes- 
see, 161 U. S. 174 

53, 166, 174 
P. G. Co. V. North Carolina, 

171 U. S. 345 89 

P. G. & C. Co. V. Chicago, 194 

U. S. 1 168, 176, 178 

Phelps V. Holker, 1 Dall. 

261 285 

Philadelphia v. The Collector, 

5 Wall. 720 225 

Picard V. E. T., V. & G. E., 

130 U. S. 637 

53, 166, 168, 174 
Pickard v. P. S. C. Co., 117 

U. S. 34 58, 105 

P. I. Co. V. Soule, 7 Wall. 433 31 
V. Tennessee, 161 U. S. 

193 52, 140, 150, 164, 174 
Pierce v. Carskadon, 16 Wall. 

234 146, 185, 188 

V. Indseth, 106 U. S. 546 229 
Pinney v. Nelson, 183 U. S. 

144 140, 308 

Planters' Bank v. Sharp, 6 

How. 301 169 

Pleasant Township v. A. L. I. 

Co., 138 U. S. 67 

139, 141, 148, 149 
Plessy V. Ferguson, 163 U. S. 

537 280, 298, 310, 318 

Plumley v. Massachusetts, 155 

U. S. 461 47, 96 

Pliunmer v. Coler, 178 U. S. 

115 44, 45 

P. M. Co. V. Pennsylvania, 125 

TJ. S. 181 304, 305, 314, 315 
Poindexter v. Greenhow. 

See Virginia Coupon Cases. 



TABLE OF CASES CITED. 
The references are to the pages. 



XXXlll 



Polk's Lessee v. Wendell, 9 

Cr. 87 240 

Pollard V. Hagan, 3 How. 212 

2 72 299 
Pollock V. P. L. & T. Co./ 157 

U. S. 429 30, 34 

V. P. L. & T. Co., 158 U. 
S. 601 34, 39, 233 

Poole V. Fleeger, 11 Pet. 185 191 
Pope V. Williams, 193 U. S. 

621 292 

Pound V. Turek, 95 TJ. S. 459 84 
Powell V. Pennsylvania, 127 

U. S. 678 315 

P. P. C. Co. V. Hayward, 141 

U. S. 36 103 

V. Pennsylvania, 141 TJ. S. 
18 22, 40, 57, 103 

P. E. V. Maguire, 20 Wall. 36 

52, 162 
V. Miller, 132 U. S. 75 

176, 177 
V. Napier S. Co., 166 U. 
S. 280 209 

Presser v. Illinois, 116 U. S. 

252 233, 298 

Prevost V. Greneaux, 19 How. 

1 239 

Prigg V. Pennsylvania, 16 Pet. 

539 19, 204, 235, 292, 299 
Prout V. Starr, 188 U. S. 

537 263 

Providence Bank v. Billings, 4 

Pet. 514 41, 53, 174 

Provident Inst. v. Massachu- 
setts, 6 Wall. 611 45 
Provident Inst, for Savings v. 
Jersey City, 113 U. S. 
506 279 
Provident Savings Society v. 

Ford, 114 U. S. 635 206 
P. E. Eemoval Cases, 115 U. 

S. 1 206 

P. T. C. Co. V. Adams, 155 

U. S. 688 54, 134, 305 

V. Alabama, 155 IJ. S. 

482 210, 215, 221 

V. Baltimore, 156 U. S. 

210 24, 134 

V. Charleston, 153 U. S. 

692 56, 134 

V. New Hope, 192 U. S. 

55 24 

V. Taylor, 192 U. S. 64 

24 134 
P. T. Co. V. W. U. T. Co., 96 

U. S. 1 62, 64, 134, 305 
Public Clearing House v. 

Coyne, 194 U. S. 497 251 



Pulliam V. Osborne, 17 How. 

471 272 

P. & S. C. Co. V. Bates, 156 

U. S. 577 43, 55, 94, 104 
V. Louisiana, 156 U. S. 
590 54, 89 

P. & S. S. S. Co. V. Pennsyl- 
vania, 122 U. S. 326 

57, 65, 105 

Quarles and Butler, In re, 158 

II. S. 532 19 

Queensbury v. Culver, 19 Wall. 

83 25 

Eahrer, In re, 140 U. S. 545 96 
Ealls County Court v. V. S., 

105 U. S. 733 148, 153, 155 
Randall v. Kreiger, 23 Wall. 

137 143 

Eapier, In re, 143 IT. S. 

110 18, 309 

Eash V. Farley, 159 U. S. 263 

55, 92, 303 
Easmussen v. Idaho, 181 IT. S. 

198 81 

Eatterman v. W. U. T. Co., 

127 U. S. 411 56, 134 

E. B. Co. V. Brister, 179 U. S. 

445 92 

E. Co. V. Alabama, 101 U. S. 

832 180 

V. County of Otoe, 16 

Wall. 667 25 

V. Ellerman, 105 U. S. 

166 170 

V. Falconer, 103 IJ. S. 821 154 
V. Fuller, 17 Wall. 560 

98, 113 
V. Georgia, 98 U. S. 359 165 
V. Hamersley, 104 U. S. 1 176 
V. Hecht, 95 U. S. 168 142 
V. Husen, 95 U. S. 465 81 
V. Jackson, 7 Wall. 262 42 
V. Koontz, 104 H. S. 5 305 
V. Lockwood, 17 Wall. 357 242 
V. McClure, 10 Wall. 511 

138, 140 
V. Mississippi, 102 U. S. 

135 206 

V. Nat. Bank, 102 U. S. 

14 242 

V. Eichmond, 96 U. S. 

521 101, 321 

V. Eock, 4 Wall. 177 140, 215 
V. Sehurmeir, 7 Wall. 272 71 
V. Tennessee, 101 U. S. 

337 180, 181 

See Ey. Co. 



XXXIV 



TABLE OF CASES CITED. 
The references are to the pages. 



E. Cos. V. Gaines, 97 U. S. 697 

52, 53, 150, 164, 166, 167 
Eeagan v. F. L. & T. Co., 154 
U. S. 362 

101a, 177, 313, 315 
V. M. T. Co., 154 U. S. 
413 101a 

Eeetz V. Michigan, 188 U. S. 

505 187, 278 

Eeggel, Ex parte, 114 U. S. 

642 193, 195 

Eeid V. Colorado, 187 U. S. 

137 81, 232 

Eelfe V. Bundle, 103 U. S. 222 308 
Eemoval Cases, 100 U. S. 457 225 
Eenaud v. Abbott, 116 U. S. 

277 284 

Eeynolds v. Stockton, 140 U. 

S. 254 285, 286 

V. U. S., 98 U. S. 145 

9, 254, 309 
E. C. E. V. Gomila, 132 U. S. 

478 272 

Ehode Island v. Massachu- 
setts, 12 Pet. 657 

2, 191, 211, 234, 235 
Eice V. E. Co., 1 Bl. 358 174 

Eichmond v. S. B. T. Co., 174 

TJ. S. 761 134 

Eider v. U. S., 178 U. S. 251 84 
Eidings v. Johnson, 128 IT. S. 

212 243 

Eiggs V. Johnson County, 6 

Wall. 166 267 

Eippey v. Texas, 193 U. S. 504 317 
Eitchie v. Mullen, 159 U. S. 

235 281 

Eoanoke, The, 189 U. S. 185 

208, 266 
Eo Bards v. Lamb, 127 U. S. 

58 274 

Eobb V. ConnoUy, 111 U. S. 

624 195, 271 

Eobbins v. Shelby County, 120 
U. S. 489 

55, 69, 92, 93, 302 
Eoberts v. Eeilly, 116 U. S. 80 195 
V. U. S., 176 U. S. 221 229 
Eobertson v. Baldwin, 165 U. 

S. 275 218, 310 

V. Cease, 97 U. S. 646 215 
Eobinson v. Campbell, 3 

Wheat. 212 243 

Eoby V. Colehour, 146 U. S. 

153 224 

Eogers v. Alabama, 192 U. S. 

226 295, 313, 319 

V. Burlington, 3 Wall. 
654 25 



EoUer v. Holly, 176 U. S. 398 273 
Eose V. Himely, 4 Cr. 241 228, 284 
Eosen v. U. S., 161 U. S. 29 254 
Eosenblatt v. Johnston, 104 

U. S. 462 48 

Eoss, In re, 140 U. S. 453 19, 246 
Eothschild v. Knight, 184 U. 

S. 334 224 

EoyaU v. Virginia, 116 U. S. 

572, 121 id. 102 169 

Ex parte, 117 U. S. 241 

18 '^25 
E. E. V. C. V. E., 159 U. S. 630 224 
Euggles V. Illinois, 108 U. S. 

526 176, 177 

Eundle v. D. & E. C. Co., 14 

How. 80 71 

Eunyan v. Coster, 14 Pet. 122 

304, 305 
E. W. Parsons, The, 191 U. S. 

17 208, 209 

Ey. Co. V. Philadelphia, 101 

U. S. 528 53, 166 

V. Whitton, 13 Wall. 270 

208, 210, 215, 243, 266, 303 
Eyder v. Holt, 128 U. S. 525 63 
E. & A. E. V. P. T. Co., 169 

U. S. 311 99 

E. & G. E. V. Eeid, 13 Wall. 

269 52, 162, 163 

E. & P. E. V. L. E., 13 How. 

81 175 

Salt Co. V. East Saginaw, 13 

Wall. 373 164 

Salt Lake City v. Tucker, 166 

U. S. 707 256 

Sands v. M. E. I. Co., 123 U. 

S. 288 23, 84, 87 

Santa Clara County v. S. P. 

E., 118 U. S. 394 304, 314 
Satterlee v. Matthewson, 2 

Pet. 380 182, 183 

Savings Society v. Multnomah 

County, 169 U. S. 421 

22, 40, 41, 42 
Sawyer v. Piper, 189 U. S. 

154 206 

Sayward v. Denny, 158 U. S. 

180 215, 224 

Schaefer v. Werling, 188 U. S. 

516 316 

Schick V. U. S., 195 U. S. 65 

235, 246, 254 
Schillinger v. U. S., 155 U. S. 

163 209 

Scholey v. Eew, 23 Wall. 331 31 
SchoUenberger v. Pennsyl- 
vania, 171 U. S. 1 96, 315 



TABLE OP CASES CITED. 
The references are to the pages. 



XXXV 



Schiirz V. Cook. 

See People v. Cook. 
S. Co. V. Chase, 16 Wall. 522 208 
V. Joliffe, 2 Wall. 450 76 

V. Portwardens, 6 Wall. 
31 44, 57, 74, 106 

Scotland County Court v. U. 

S., 140 U. S. 41 153, 155 
Scott V. Donald, 165 U. S. 58 

91, 96 
V. Jones, 5 How. 343 138 

V. McNeal, 154 U. S. 34 274 
V. Neely, 140 II. S. 106 

210, 243 
V. Sandford, 19 How. 393 

8, 215, 231, 291, 292 
Scranton v. Wheeler, 179 U. S. 

141 253 

S. C. S. Ey. V. Sioux City, 138 

U. S. 98 53, 165, 174 

Scudder v. Comptroller, 175 U. 

S. 32 224 

S. D. L. & T. Co. V. Jasper, 

189 U. S. 439 101b, 278 
V. National City, 174 U. 
S. 739 101b, 278 

Searight v. Stokes, 3 How. 151 97 
Seeberger v. McCormiek, 175 

U. S. 274 224 

Seibert v. Lewis, 122 U. S. 

284 155 

Seneca Nation v. Christy, 162 

U. S. 283 224 

Sentell v. N. O. & C. E., 166 

U. S. 698 280 

S. F. et A. des E. U. v. Milli- 

ken, 135 U. S. 304 305 
Shaw V. Covington, 194 U. S. 

593 175 

V. Eobbins, 12 Wheat. 369 

151, 153 
Shelby County v. Union & 
Planters' Bank, 161 
U. S. 149 

53, 141, 162, 167, 174 
Sherlock v. Ailing, 93 U. S. 

99 208 

Shibuya Jugiro, In re, 140 

U. S. 291 313 

Shields v. Ohio, 95 U. S. 319 

52, 150, 165, 174, 175, 178 
Shively v. Bowlby, 152 U. S. 1 

2 72 299 
Shotwell V. Moore, 129 IT. s! 

590 44 

Shreveport v. Cole, 129 U. S. 

36 139 

Shriver's Lessee v. Lynn, 2 

How. 43 284 



Shumate v. Heman, 181 U. S. 

402 316 

Siebold, Ex parte, 100 U. S. 371 296 
Simmons v. Saul, 138 U. S. 

439 283, 284 

Simon v. Craft, 182 XT. S. 427 273 
Sinnot v. Davenport, 22 How. 

227 77, 79, 101 

Slaughter House Cases, 16 
Wall. 36 290, 291, 298, 

300, 310, 311, 314 
Slocum V. Mayberry, 2 Wheat. 

1 217, 270, 272, 273 

S. L. & T. Co. V. Comptroller 
of New York, 177 U. S. 
318 279 

Smith V. Alabama, 124 U. S. 

465 235, 237 

V. Condry, 1 How. 28 282 

V. Indiana, 191 U. S. 138 228 
V. Maryland, 18 How. 71 

71, 72, 299 
V. Mclver, 9 Wheat. 532 272 
V. Eeeves, 178 U. S. 436 262 
V. S. L. & S. W. Ey., 181 
U. S. 248 81 

Smyth V. Ames, 169 U. S. 466 
101a, 101b, 129, 

263, 278, 304, 313, 314 
V. Ames, 171 U. S. 361 

101b, 315 
Snyder v. Bettman, 190 U. S. 

249 39 

Society for Savings v. Coite, 6 

Wall. 594 45 

Sonnentheil v. M. B. Co., 172 

U. S. 401 206 

Soon Hing v. Crowley, 113 U. 

S. 703 237, 321 

South Carolina v. Georgia, 93 

U. S. 4 73, 85, 211 

South Dakota v. North Caro- 
lina, 192 U. S. 286 

211, 212, 261 
S. P. Co. V. Denton, 146 U. S. 

202 307 

Spencer v. Merchant, 125 U. 

S. 345 24, 40, 277, 282 

Spies V. Illinois, 123 IJ. S. 131 

224, 275, 298 
Spraigue v. Thompson, 118 U. 

S. 90 77, 233 

Springer v. U. S., 102 U. S. 

586 31, 34, 250 

Springville v. Thomas, 166 U. 

S. 707 256 

Sprott V. U. S., 20 Wall. 459 191 
S. Ey. V. Allison, 190 U. S. 326 

215, 303, 305 



XXXVl 



TABLE OP CASES CITED. 
The references are to the pages. 



S. S. Co. V. Joliffe, 2 WaU. 450 76 
V. Portwardens, 6 Wall. 

31 44, 57, 74, 106 

S. S. E. Co. ■;;. McClain, 192 

U. S. 397 31 

Stacy V. Thrasher, 6 How. 44 288 
St. A. F. W. P. Co. V. St. 

Paul W. Comrs., 168 

U. S. 349 2, 71 

Stanislaus County v. S. J. & 

K. E. C. & I. Co., 192 

U. S. 201 

101b, 175, 176, 178, 278, 315 
Stanley v. Sehwalby, 162 IT. S. 

255 209 

V. Supervisors, 121 U. S. 

535 51 

State V. Parkhurst, 9 N. J. L. 

427 233 

State Bank v. Knopp, 16 How. 

369 141 

State Freight Tax, 15 Wall. 

232 22, 58, 65, 105 

State Tax on Foreign-held 

Bonds, 15 Wall. 300 

41, 42, 147 
State Tax on Eailway Gross 

Eeceipts, 15 Wall. 284 

57, 105 
State Tonnage Tax Cases, 12 

Wall. 204 44, 74 

St. Clair v. Cox, 106 U. S. 350 

285, 286, 306 
St. Clair County v. I. S. & C. 

T. Co., 192 U. S. 454 82 
S. T. Co. V. B. E. Nat. Bank, 

187 U. S. 211 210, 242 

Steamship Co. v. Joliffe, 2 

Wall. 450 76 

Steamship Co. v. Portwardens, 

6 Wall. 31 44, 57, 74, 106 
Stearns v. Minnesota, 179 U. 

S. S. 223 

52, 53, 141, 162, 164, 165 
Stein V. B. W. S, Co., 141 U. 

S. 67 175 

Stephens v. Cherokee Nation, 

174 U. S. 445 184 

Stevens v. Griffith, 111 U. S. 

48 139 

V. Nichols, 130 U. S. 230 215 
St. J. & G. I. E. V. Steele, 

167 U. S. 659 210, 215, 303 
St, Lawrence, The, 1 Bl. 522 

207, 209 
St. L. C. C. Co. V. niinois, 

185 U. S. 203 280, 321 
St. L., I. M. & St. P. Ey. V. 

Paul, 173 U. S. 404 319 



St. Louis V. W. F. Co., 11 

Wall. 423 41, 57, 82, 106 
V. W. U. T. Co., 148 U. 
S. 92 24, 134 

St. L. & S. F. Ey. V. GiU, 156 
U. S. 649 

53, 101a, 174, 

175, 178, 278, 315 
V. James, 161 U. S. 545 

192, 210, 215, 303, 305 
V. Mathews, 165 U. S. 1 

176, 177, 278, 318 
Stockard v. Morgan, 185 U. S. 

27 55, 92 

Stockdale v. I. Cos., 20 Wall. 

323 184 

Stone V. F. L. & T. Co., 116 

U. S. 307 98, 101a, 176, 177 
V. I. C. E., 116 U. S. 347 

98, 177 
V. Mississippi, 101 U. S. 

814 178 

V. N. O. & N. E. E., 116 

U. S. 352 98 

Storti V. Massachusetts, 183 

U. S. 138 215, 225 

St. P. G. L. Co. V. St. Paul, 

181 U. S. 142, 139, 141 

St. P., M. & M. Ey. V. Todd 

County, 142 U. S. 282 140 
Strader v. Graham, 10 How. 

93 292 

Strauder v. West Virginia, 

100 U. S. 303 295, 313 

Streitwolf v. Streitwolf, 181 

U. S. 179 286 

Strother v. Lucas, 6 Pet. 763 229 
Stuart V. Laird, 1 Cr. 299 234 

Sturges V. Crowninshield, 4 

Wheat. 122 

2, 4, 63, 138, 142, 

147, 150, 152, 159, 217, 235 
St. T. W. W. V. N. O. W, W., 

120 U. S. 64 169 

Sully V. American Nat. Bank, 

178 U. S. 289 303, 304, 319 
Supervisors v. Durant, 9 Wall. 

415 267 

V. Stanley, 105 U. S. 305 

50, 51 
V. U. S., 154 U. S. 576 267 
Suydam v. Broadnax, 14 Pet. 

67 147, 151, 271 

S. V. W. W. V. Schottler, 110 

U. S. 347 177 

Swafford v. Templeton, 185 

U. S. 487 206, 293, 294 
Swan, In re, 150 U. S. 637 250 
Swift V. Tyson, 16 Pet. 1 242, 243 



TABLE OF CASES CITED. 
The references are to the pages. 



XXXVll 



S. W. W. Co. V. Skaneateles, 

184 U. S. 354 169 

Talbot V. S. C. First Nat. 

Bank, 185 U. S. 172 206 
V. Seeman, 1 Cr. 1 229 

Talton V. Mayes, 163 II. S. 

376 247 

Tappan v. Merchants' Nat. 

Bank, 19 Wall. 490 51 

Tarble's Case, 13 Wall. 397 271 
Tarrance v. Florida, 188 U. S. 

519 313, 319 

Taylor v. Carryl, 20 How. 

583 272 

V. Ypsilanti, 105 U. S. 60 25 
Taylor and Marshall v. Beck- 
ham, 178 U. S. 548 280, 327 
T. Co. V. Parkersburg, 107 U. 

S. 691 23, 87 

V. Wheeling, 99 U. S. 273 

54, 66, 82, 106 
Teal V. Felton, 12 How. 284 268 
Tel. Co. V. Texas, 105 U. S. 

460 64 

Tennessee v. Davis, 100 U. S. 

257 205, 216, 225 

V. P. S. C. Co., 117 U. S. 

51 58, 105 

V. Sneed, 96 U. S. 69 145 

V. Union & Planters' 

Bank, 152 U. S. 454 215 
V. Virginia, 177 V. S. 501 211 
Terlinden v. Ames, 184 U. S. 

270 228 

Terrett v. Taylor, 9 Cr. 43 161 
Terry v. Anderson, 95 U. S. 

628 143 

Ex parte, 128 U. S. 289 

250, 254 
Texas v. White, 7 Wall. 700 

2, 213, 229, 327 
The Albany Bridge Case. 

See Albany Bridge Case. 
The Belfast. 

See Belfast, The. 
The China. 

See China, The. 
Thomas v. Gay, 169 U. S. 264 238 
V. U. S., 192 U. S. 363 31 
Thomson v. P. E., 9 Wall. 579 47 
Thompson v. Missouri, 171 U. 

S. 380 187 

-i;. U. S., 155 U. S. 271 252 
V. Utah, 170 U. S. 343 10, 185 
V. Whitman, 18 Wall. 457 

284, 287 
Thorington v. Montgomery, 

147 U. S. 490 247, 298 



Thormann v. Frame, 176 U. S. 

350 284 

T. I. Co. V. Connecticut, 185 

U. S. 364 300 

Tiernan v. Einker, 102 U. S. 

123 55, 303 

Timmons v. E. L. Co., 139 U. 

S. 378 215 

Tinsley v. Anderson, 171 U. S. 

101 225, 274, 322 

Tomlinson v. Branch, 15 Wall. 

460 53, 168 

V. Jessup, 15 Wall. 454 165 
Tonawanda v. Lyon, 181 U. S. 

389 24, 273 

Town of Venice v. Murdoek, 

92 U. S. 494 242 

Townsend v. Todd, 91 U. S. 

452 241 

Trade Mark Cases, 100 U. S. 

82 63, 233 

Transportation Co. v. Parkers- 
burg, 107 U. S. 691 23, 87 
V. Wheeling, 99 U. S. 273 

54, 66, 82, 106 
Trask v. Maguire, 18 Wall. 391 

52, 150, 164 
Trevett v. Weeden, 2 Arnold, 

525 233 

Trigg V. Drew, 10 How. 224 169 
Tucker v. Ferguson, 22 Wall. 

527 46, 53, 166, 174 

Tulare Irr. Dist. v. Shepard, 

185 U. S. 1 148 

Tullis V. L. E. & W. R, 175 

U. S. 348 315 

Tullock V. Mulvane, 184 U. S. 

497 206 

TurnbuU v. Payson, 95 U. S. 

418 289 

Turner v. Maryland, 107 U. S. 

38 44, 89 

V. New York, 168 U. S. 

90 279 

V. Wilkes County Comrs., 

173 U. S. 461 140, 243, 282 
V. Williams. 
See U. S. V. Williams. 
Turnpike Co. v. State, 3 Wall. 

210 175 

Turpin v. Burgess, 117 U. S. 

504 29, 73 

V. Lemon, 187 U. S. 51 

228, 277 
Twin City Bank v. Nebeker, 

167 U. S. 196 23, 40 

Twitchell v. The Common- 
wealth, 7 Wall. 321 

224, 254 



XXXVlll 



TABLE OP CASES CITED. 
The references are to the pages. 



Tyler v. Judges of Court of 
Eegistration, 179 U. S. 
404 228 

In re, 149 U. S. 164 272 

T. & P. Ey. V. Cody, 166 U. S. 

606 206 

V. Cox, 145 id. 593 243 

V. I. C. C, 162 U. S. 197 

109, 112 

University v. People, 99 U. 

S. 309 52, 140, 162, 163 
U. P. E. V. Peniston, 18 Wall. 

5 47 

Upshur County v. Eich, 135 

U. S. 467 228 

U. E. V. City of New York, 

193 U. S. 416 148 

U. E. T. Co. V. Lynch, 177 

U. S. 149 40, 54, 57, 103 
Urtetiqui v. D'Arbel, 9 Pet. 

692 288 

U. S. V. Amedy, 11 Wheat. 

392 282 

V. Arredondo, 6 Pet. 691 239 
V. Ball, 163 U. S. 662 251, 252 
V. B. B. B. Co., 176 U. S. 

211 83, 84 

V. Bevans, 3 Wheat. 336 

73 216 
V. Black, 128 U. S. 40 ' 229 
V. Blaine, 139 U. S. 306 229 
V. Burr, 4 Cr. 470 235 

V. B. & O. E., 17 Wall. 

322 39 

V. Coolidge, 1 Wheat. 415 

216, 239 
V. Cruikshank, 92 U. S. 

542 217, 291, 294, 309 

V. De Walt, 128 U. S. 393 247 
V. Dewitt, 9 Wall. 41 70, 216 
V. E. C. Knight Co., 156 

U. S. 1 67, 128, 131 

V. Perreira, 13 How. 40 223 
V. Fisher, 2 Cr. 358 18 

V. Forty-three Gallons of 
Whiskey, 93 U. S. 188 

136, 238 
V. Fox, 94 U. S. 315 298 

V. Fox, 95 U. S. 670 

186, 216, 217 
V. G. E. Ey., 160 U. S. 

668 19, 232 

V. Haas, 3 Wall. 407 135 

V. Hall, 98 U. S. 343 18 

V. Hamilton, 3 Dall. 17 250 
V. Harris, 106 U. S. 629 

3, 232, 233, 310, 322 
V. Holliday, 3 Wall. 407 135 



U. S. V. Hudson, 7 Cr. 32 

216, 220, 239 
V. Isham, 17 Wall. 506 132 
V. J. T. A., 171 U. S. 505 
67, 122, 123, 
124, 125, 127, 129 
V. Jung Ah Lung, 124 U. 

S. 621 297 

V. Keehler, 9 Wall. 83 191 
V. Le Bris, 121 U. S. 278 136 
V. Lee, 106 U. S. 196 264 

V. Lee Yen Tai, 185 U. S. 

213 ^38 

V. Lynah, 188 U. S. 445 253 
V. Marigold, 9 How. 560 

18, 269 
V. Memphis, 97 U. S. 284 179 
V. Michigan, 190 U. S. 

379 209, 213 

V. M. E. Co., 189 U. S. 

391 72, 299 

V. New Orleans, 98 U. S. 

381 24 

V. North Carolina, 136 U. 

S. 211 209 

V. Ortega, 11 Wheat. 467 

206, 220 
V. P.-D. M. Co., 176 U. S. 

317 266 

V. Perez, 9 Wheat. 579 251 
V. Perkins, 163 U. S. 625 

42, 45 
V. Perot, 98 U. S. 428 230 
Peters, 3 Dall. 121 221 

Peters, 5 Cr. 115 263, 266 
Eeese, 92 U. S. 214 

217, 293 
Eeid, 12 How. 361 265 

E. G. D. & I. Co., 174 
U. S. 690 84 

Eice, 4 Wheat. 246 26 

Eickert, 188 U. S. 432 46 
Schooner Peggy, 1 Cr. 
103 238 

Schurz, 102 U. S. 378 229 
Singer, 15 Wall. Ill 31 
Sing Tuck, 194 U. S. 
161 225, 297 

Texas, 143 U. S. 621 

228, 265 
T. M. F. A., 166 U. S. 
290 

67, 112, 123, 125, 127, 129 
U. P. E., 91 U. S. 
72 236 

Waddell, 112 U. S. 76 

19 250 
Williams, 194 U. S. 279 

251, 254, 309 



TABLE OP CASES CITED. 
The references are to the pages. 



yyxiy 



U. S. V. Windom, 137 U. S. 

636 229 

V. Wong Kim Ark, 169 
U. S. 649 

235, 291, 297, 298 
V. Zucker, 161 U. S. 475 254 

Van Allen v. The Assessors, 3 

Wall. 573 48, 49 

Van Brocklin v. Tennessee, 

117 U. S. 151 46 

Vance v. Vance, 108 U. S. 

514 143 

V. W. A. V. Co., 170 U. S. 

438 90 

Van Hoffman v. Quincy, 4 

Wall. 552 145 

Van Home's Lessee v. Dor- 
ranee, 2 Dall. 304 204 
Vaughan v. Northup, 15 Pet. 

1 267 

Veazie Bank v. Fenno, 8 Wall. 

533 17, 31, 40 

V. Moor, 14 How. 568 78, 85 
Venice v. Murdock, 92 U. S. 

494 242 

Vieksburg v. Tobin, 100 U. S. 

430 23, 87 

Virginia v. Eives, 100 U. S. 

313 295, 313 

V. Tennessee, 148 U. S. 

503 192, 211 

V. West Virginia, 11 

Wall. 39 191, 192, 211 

Virginia Coupon Cases, 114 

U. S. 269 

169, 190, 233, 264 
Virginia, Ex parte, 100 U. S. 

339 295, 313 

Voight V. Wright, 141 U. S. 

62 90, 91 

Voigt V. Detroit, 184 U. S. 

115 24, 277 

Voorhees v. Bank of the U. S., 

10 Pet. 449 284 

V. W. Co. V. Vieksburg, 185 

U. S. 65 206 

Wadsworth v. Supervisors, 102 

U. S. 534 148, 149 

Wagonner v. Flack, 188 U. S. 

595 141, 142 

Waite V. Dowley, 94 U. S. 527 52 
V. Santa Cruz, 184 U. S. 

302 148 

Wales V. Stetson, 2 Mass. 146 165 
V. Whitney, 114 U. S. 564 244 
Walker v. Sauvinet, 92 U. S. 

90 255, 274 



Walker v. Whitehead, 16 Wall. 

314 146 

Wall, Ex parte, 107 U. S. 265 247 
Walla Walla v. W. W. W. Co., 

172 U. S. 1 139, 169 

Wallace v. McConnell, 13 Pet. 

136 271, 272 

Walling V. Michigan, 116 U. S. 

446 55, 91, 302 

Walsh V. C, H. V. & A. E., 176 

U. S. 469 141 

Walston V. Nevin, 128 U. S. 

578 277, 316 

Ward V. Maryland, 12 Wall. 

418 55, 90, 302 

Waring v. Clarke, 5 How. 441 

209, 217 
V. The Mayor, 8 Wall. 

110 88 

Warner v. S. & H. Co., 191 

U. S. 195 63 

Watson V. Jones, 13 Wall. 

679 266 

V. Mercer, 8 Pet. 88 182, 183 
Watts and Sachs, In re, 190 

U. S. 1 266 

Wayman v. Southard, 10 

Wheat. 1 265 

W. B. Co. V. Hatch, 125 U. S. 

1 84 

Webber v. Virginia, 103 U. S. 

344 47, 55, 90, 302 

Weber v. Harbor Comrs., 18 

Wall. 57 71, 72, 299 

V. Eogan, 188 U. S. 10 148 
Webster v. Cooper, 14 How. 

488 241 

V. Eeid, 11 How. 437 285 

Wedding v. Meyler, 192 U. S. 

573 ^85 

Welch V. Cook, 97 IT. S. 541 164 
Wells V. Savannah, 181 U. S. 

531 52, 53, 166 

Wells, Ex parte, 18 How. 307 250 
Welton V. Missouri, 91 U. S. 

275 55, 69, 90, 302 

Werlein v. New Orleans, 177 

U. S. 390 289 

West V. Aurora City, 6 Wall. 

139 225 

V. Louisiana, 194 U. S. 

258 275 

Weston V. Charleston, 2 Pet. 

449 44 

Weyerhaueser v. Minnesota, 

176 U. S. 550 277 

W. F. Co. V. East St. Louis, 

107 U. S. 365 

53, 54, 66, 82, 106, 166 



xl 



TABLE OP CASES CITED. 



The references are to the pages. 



Wharton v. Wise, 153 U. S. 

155 192 

Wheaton v. Peters, 8 Pet. 591 

239, 243 
Wheeler v. Jackson, 137 U. S. 

245 143, 279 

Whitbeck v. Mercantile Bank, 

127 U. S. 193 51 

White V. Hart, 13 Wall 646 

2, 138, 146, 310 
V. Schloerb, 178 U. S. 542 272 
Whitehead v. Shattuck, 138 

U. S. 146 255 

Whitman v. Oxford Nat. 

Bank, 176 U. S. 559 288 
Whitney v. Eobertson, 124 U. 

S. 190 238 

Whitten v. Tomlinson, 160 U. 

S. 231 195, 225 

Wickliffe v. Owings, 17 How. 

47 215 

Wight V. Davidson, 181 U. S. 

371 251 

V. U. S., 167 U. S. 512 111 
Wilcox V. Jackson, 13 Pet. 498 

264, 284 
Wiley V. Sinkler, 179 U. S. 58 

293, 294 
Wilkerson v. Utah, 99 U. S. 

130 257 

Wilkes County v. Coler, 180 TJ. 

S. 506 139, 140, 282 

Wilkes County Comrs. v. Coler, 

190 U. S. 107 25 

Williams v. Benedict, 8 How. 

107 267, 272 

V. Brufl'y, 96 U. S. 176 

139 191 
V. Fears, 179 U. S. 270 

56, 320 
V. Heard, 140 U. S. 529 

224, 268 
V. Louisiana, 103 U. S. 

637 141 

V. Mississippi, 170 U. S. 

213 313, 319 

V. Parker, 188 U. S. 491 278 
V. Wingo, 177 U. S. 601 

168, 175 
Williamson v. Berry, 8 How. 

495 284 

V. New Jersey, 130 U. S. 

189 170 

V. Suydam, 6 Wall. 723 143 
Willson V. The B. B. C. M. Co., 

2 Pet. 245 84 

Wilson V. Eureka City, 173 U. 

S. 32 280, 322 

V. Iseminger, 185 U. S. 55 143 



Wilson V. Lambert, 168 U. S. 

611 251 

V. McNamee, 102 U. S. 

572 76 

V. North Carolina, 169 U. 

S. 586 280 

V. Standefer, 184 U. S. 

399 141 

Ex parte, 114 U. S. 417 247 
Wiscart v. Dauchy, 3 Dall. 

321 223 

Wisconsin v. Duluth, 96 U. S. 

379 85, 211 

V. P. L Co., 127 U. S. 265 

212, 213, 288 
Wise V. Withers, 3 Cr. 331 244 
Wiswall V. Sampson, 14 How. 

52 267, 272 

Withers v. Buckley, 20 How. 

84 85, 247 

Witherspoon v. Duncan, 4 

Wall. 210 40 

W., M. & P. E. V. Jacobson, 

179 U. S. 287 100 

Wolff V. New Orleans, 103 U. 

S. 358 148, 153, 155 

Wong Wing v. U. S., 163 U. S. 

228, 238, 251, 254, 297 

Wood V. Brady, 150 U. S. 18 140 
Woodruff V. Mississippi, 162 

U. S. 291 141, 148 

V. Parham, 8 Wall. 123 
28, 29, 54, 64, 73, 
88, 90, 94, 104, 106 
V. Trapnall, 10 How. 190 169 
Worcester v. Georgia, 6 Pet. 

515 135, 224 

Workman v. New York, 179 

U. S. 552 206, 209 

W. P. O. Co. V. Texas, 177 U. 

S. 28 304 

W. P. S. C. ■;;. Casperson, 193 

U. S. 189 298 

W. E. V. Defiance, 167 U. S. 

88 176, 177, 280 

Wright V. M. M. L. I. Co., 193 

U. S. 657 165 

Wright V. Nagle, 101 TJ. S. 

791 141, 175 

W., S. L. & P. Ey. V. Hlinois, 

118 U. S. 557 101, 113 

Wurts V. Hoagland, 114 U. S. 

606 277 

W. U. T. Co. V. A. A. E., 178 

U. S. 239 206, 215 
V. Alabama, 132 U. S. 472 

56, 135 
V. C. P. Co., 181 U. S. 
92 210, 239, 243 



TABLE OF CASES CITED. 
The references are to the pages. 



xli 



W. 17. T, Co. V. Indiana, 165 

U. S. 304 35, 40 

V. James, 162 U. S. 650 

64, 134 
V. Massachusetts, 125 U. 

S. 530 40, 57, 135 

V. Missouri, 190 U. S. 412 

40, 57, 103, 134 
V. New Hope, 187 U. S. 

419 24, 134 

V. Pendleton, 122 U. S. 

347 134 

V. Taggart, 163 U. S. 1 

22, 40, 54, 57, 134 
V. Texas, 105 U. S. 460 

44, 58, 134 
Wynehamer v. The People, 13 

N. Y. 428 10 

W. & B. Bridge Co. v. W. B. 

Co., 138 U. S. 287 175, 176 
W. & M. Ry. V. Powers, 191 

U. S. 379 164 

W. & St. P. L. Co. V. Minne- 
sota, 159 U. S. 526 

53, 166, 167, 277 



W. & St. P. E. V. Blake, 94 U. 

S. 180 176 

W. & W. E. V. Alsbrook, 146 

U. S. 279 

52, 53, 162, 166, 168, 174 

V. King, 91 U. S. 3 146 

V. Eeid, 13 Wall. 264 52, 162 

Yarbrough, Ex parte, 110 U. 

S. 651 

18, 19, 250, 293, 296 
Yiek Wo v. Hopkins, 118 U. S. 

356 311, 312 

York V. Texas, 137 U. S. 15 273 
Young V. Clarendon Township, 

132 U. S. 340 25 

V. Parker, 132 U. S. 

267 225 

Y. & M. V. E. V. Thomas, 132 

U. S. 174 53, 166 

Y. & M. V. Ry. V. Adams, 180 

U. S. 1 224 

Zane v. Hamilton County, 189 

U. S. 370 148, 149 



CHAPTER I. 

THE EELATION OF THE STATES AND OF THE TEEEITOEIES 
TO THE UNITED STATES AND TO EACH OTHEE. 

1. The sanction of the Constitution, 

2. The indissolubility of the Union. 

3. The autonomy of the states. 

4. The delegated character and limited powers of the government of the 

United States. 

5. The federal supremacy. 

6. The restraints upon the states. 

7. The force and effect of the preamble to the Constitution. 

8. The territories. 

The sanction of the Constitution. 

1. The Constitution, though framed by a convention 
whose members were elected by the legislatures of the 

^ates, was ratified in the several states by conventions 
wliose members were elected by the people of their 
respective states. It derives its whole authority from 
that ratification, and when thus adopted, it was of com- 
^plete obligation and it thenceforth bound the states, and 
the citizens of each state.^ 

The indissolnbility of the Union. 

2. The union of the states under the Constitution was, 
from and after the ratification of that instrument, indis- 
soluble, and, until an amendment be adopted, authoriz- 
ing a dissolution of the union, or a withdrawal of a state 
from the union, it is not possible for a state, without 
violating the constitutional compact, to withdraw from 
the union, or to deprive itself of its rights as one of the 

^Martin v. Hunter's Lessee, 1 Wheat. 304, 324; McCulloch v. Maryland, 
4 Wheat. 316, 404. See also Downes v. Bidwell, 182 U. S. 251, 285, 359, 
376. 

1 



Z EELATION BETWEEN THE GOVERNMENTS. 

United States, or to emancipate itself from the restraints 
imposed by the Constitution on freedom of state action,^ 

The autonomy of the states. 

3. The thirteen original states were existing govern- 
ments when the Constitution was ratified; and states 
admitted to the union under the Constitution have as 
regards the United States and the other states, in all 
respects in which the effect of that instrument has not 
been changed by amendment, the same rights, powers 
and obligations as the thirteen original states.^ There- 
fore, in so far as the states are not controlled by 
the expressed or implied restrictions contained in the 
Constitution of the United States, they may severally 
exercise all the powers of independent governments.* 
The states, though united under the sovereign authority 
of the Constitution, are, so far as their freedom of action 
is not controlled by that instrument, foreign to and inde- 
pendent of each other.^ 

The delegated character and limited powers of the 
federal government. 

4. The government of the United States, in its relation 
to the several states and to the citizens of those states, 
is one of delegated and limited powers, which are 
expressly or by necessary implication granted by its 

* Texas v. White, 7 Wall. 700; White v. Hart, 13 WaU. 646; Keith v. 
Clark, 97 U. S. 454. 

« Pollard V. Hagan, 3 How. 212; Texas v. White, 7 Wall. 700; Shively v. 
Bowlby, 152 U. S. 1; St. A. F. W. P. Co. v. St. Paul W. Comrs., 168 id. 
349; Bolln v. Nebraska, 176 id. 83; M. T. Co. v. MobHe, 187 id. 479. 

* Amendments to the Constitution, Articles IX and X ; Martin v. Hunter 's 
Lessee, 1 Wheat. 304, 325 ; Sturges v. Crowninshield, 4 Wheat. 193 ; Texas v. 
White, 7 Wall. 700, 721. 

■* Buckner v. Finley, 2 Pet. 586, 590 ; Ehode Island v. Massachusetts, 12 
Pet. 722. 



THE FEDEEAL SUPEEMACY. 6 

written Constitution.^ The Constitution has created a 
government, divided into three departments, legislative, 
executive and judicial. As the chief function of the 
executive department, apart from its participation in 
legislation by the exercise of a qualified veto, is that of 
administering the laws of Congress, and as the primary 
duty of the judicial department is that of expounding 
the Constitution and the laws in their application to 
subject-matters of judicial cognizance, either civil or 
criminal, it is obvious that the powers conferred by the 
Constitution upon the government of the United States 
are, in the main, powers of legislation. The powers 
granted by the Constitution to the government of the 
United States are either expressed or implied. The 
expressed powers are those which are specifically stated 
in the Constitution. The implied powers are those which 
authorize the use of appropriate means, which are con- 
sistent with the letter and spirit of the Constitution, for 
the accomplishment of legitimate ends, which are not 
prohibited, and which are within the scope of the Con- 
stitution.^ The powers granted by the Constitution to 
the United States are subject to certain expressed excep- 
tions, which are, in the main, contained in the 9th section 
of Article I of the Constitution and in the first eleven of 
its amendments. 

The federal supremacy. 

5. Article VI of the Constitution declares that 'Hhis 
Constitution and the laws of the United States which 
shall be made in pursuance thereof, and all treaties made, 
or which shall be made, under the authority of the United 

* Martin v. Hiinter's Lessee, 1 Wheat. 304, 326; Marbury v. Madison, 1 
Cr. 137, 176; Briscoe v. Bank of Kentucky, 11 Pet. 317; TJ. S. v. Harris, 
106 TJ. S. 629; Langford v. U. S., 101 id. 341. 

''Infra, Chapter II; Constitution, Article I, Section 8; McCuUocli v. 
Maryland, 4 Wheat. 421. 



4 EELATION BETWEEN" THE GOVERNMENTS. 

States, shall be the supreme law of the land; and the 
judges in every state shall be bound thereby, anything 
in the Constitution or laws of any state to the contrary 
notwithstanding." By force of this constitutional pro- 
vision, the government of the United States, as Marshall, 
C. J., said in McCulloch v. Maryland,^ "though limited 
in its powers, is supreme within its sphere of action," 
and to the extent, and in the exercise, of the powers dele- 
gated to it, it is a sovereignty.^ 

The restraints upon the states. 

6. The restraints imposed by the Constitution upon 
the states are either expressed or implied. The ex- 
pressed restraints are those which are specifically stated 
in the Constitution. The implied restraints are those 
which result from the express grant by the Constitution 
of certain powers whose nature, or the terms of whose 
grant, require that they should be exclusively exercised 
by the United States.^^ The expressed restraints are, 
first, those which affect the relations of the several states 
to other states, foreign and domestic; and, second, those 
which have reference to the relations between the states 
and their citizens, and which limit the exercise by the 
states of their powers of legislation. The expressed 
restraints of the first class include the prohibition of 
treaties, alliances, confederations, agreements, or com- 
pacts with another state or with a foreign power; the 
obligation not to issue letters of marque and reprisal, or 
to maintain troops or ships of war in times of peace, or 

« Wheat. 316, 405. 

° Alexander Hamilton's argument of 23d Fedruary, 1791, as to the con- 
stitutionality of a national bank. 3 Lodge's Hamilton's Works, 181; 
Juilliard v. Greenman, 110 U. S. 421; Logan v. U. S., 144 id. 263; In re 
Debs, 158 id. 564; Downes v. Bidwell, 182 id. 288. 

^" Sturges V. Crowninshield, 4 Wheat. 122, 193; Houston v. Moore, 5 id. 49; 
G-Uman v. Philadelphia, 3 Wall. 713. 



THE EESTEAINTS TJPOISr THE STATES. 5 

to engage in war unless actually invaded or in such immi- 
nent danger as will not admit of delay; the requirements 
that full faith and credit shall be given in each state to 
the public acts, records, and judicial proceedings of every 
other state, and that the citizens of each state shall be 
entitled to all the privileges and immunities of citizens 
of the several states, and that fugitives from justice shall 
be surrendered from one state to another. The expressed 
restraints of the second class include the prohibition of 
the grant of titles of nobility, of the coinage of money, 
of the emission of bills of credit, of the establishment 
of any legal tender other than gold and silver coin, of 
the imposition of duties of tonnage and duties on imports 
or exports, excepting such as may be absolutely neces- 
sary for the execution of inspection laws ; of the rehabili- 
tation of slavery or involuntary servitude, except as a 
punishment for crime; of the deprivation of any person 
of life, liberty, or property without due process of law; 
of the denial to any person of the equal protection of 
the law; of disfranchisement on account of race, colour, 
or previous condition of servitude, or for any cause, except 
for participation in rebellion or other crime, of any of 
the male inhabitants of a state who are twenty-one years 
of age and citizens of the United States ; of the election or 
the appointment to office under a state of any person 
''who, having previously taken an oath, as a member of 
Congress, or as a member of any state legislature, or as 
an executive or judicial officer of any state, to support 
the Constitution of the United States, shall have engaged 
in insurrection or rebellion against the same, or given 
aid or comfort to the enemies thereof," and whose dis- 
abilities shall not have been removed by a vote of two- 
thirds of each house of Congress; of the assumption or 
payment of any debt or obligation incurred in aid of in- 
surrection or rebellion against the United States, or of 



6 EELATION BETWEEN THE GOVERNMENTS. 

any claim for the loss or emancipation of any slave; and 
of the enactment of bills of attainder, ex post facto laws, 
or laws impairing the obligation of contracts. 

The implied restraints limit the action of the states 
with regard to taxation, the regulation of commerce, and 
the personal and property rights of their citizens, and of 
the citizens of other states. 

Many of the restraints are so clear in their terms, and 
so little require judicial construction, that no question 
has ever been raised as to their legal effect, but others 
of those restraints have been frequently subjects of liti- 
gation. For the purposes of this treatise it is unneces- 
sary to make further reference to the restraints with 
regard to the issue of letters of marque or reprisal, the 
maintenance of troops or ships of war in time of peace, 
the engagement in war unless actually invaded or in 
such imminent danger as will not admit of delay, the 
grant of titles of nobility, or the coinage of money. As, 
happily for the peace and prosperity of the country, 
slavery is of past, and not of present, interest, it is not 
deemed necessary to refer to that subject further than 
to note that the XIII Amendment has abolished it in 
every form, and forbidden its re-establishment. 

The force and effect of the preamble to the Constitution. 

7. The preamble to the Constitution declares that 
"We, the people of the United States, in order to form 
a more perfect union, establish justice, insure domestic 
tranquillity, provide for the common defense, promote 
the general welfare, and secure the blessings of liberty 
to ourselves and our posterity, do ordain and establish 
this Constitution for the United States of America." 
That the true significance of that declaration may be 
understood, it must be remembered that the people, 
whose ratification of the instrument gave it its legal 



THE TEREITOEIES. 7 

validity, were citizens of independent states, which had 
been theretofore bound together in a confederation, and 
which were thenceforth to be united under a govern- 
ment which, though limited in its action by the reserva- 
tion to the several states of all powers not delegated to 
the United States, should yet be supreme within its 
defined bounds.^ ^ 

Therefore, the government created by the Constitution 
is, to the extent of the powers vested in that government, 
national in its character, and, by force of the rights 
reserved to the states, it is also a league of sovereign 
and independent states; and every citizen of each state, 
while owing allegiance to his state in all matters not 
controlled by the powers granted to the United States, 
owes also a paramount allegiance to the United States 
in all that is made by the Constitution of federal obliga- 
tion. In view of this dual, and yet undivided, allegiance 
due by those who are citizens of the United States and 
also citizens of a state, it was, in the hour of its forma- 
tion, and it has ever since been, essential to the right 
administration of the government of the United States 
under the Constitution that there should be a clear ap- 
preciation of the complex character of that government 
and a careful maintenance of the balance of power as 
between the government of the United States and the 
governments of the several states. 

The territories. 

8. The Constitution ^^ dealt with the territory owned at 
the time of its adoption and with future acquisitions of 
territory, by providing that ' ' new states may be admitted 
by the Congress into the Union," and that^^ ''the Con- 

" Martin v. Hunter's Lessee, 1 Wheat. 304, 325. 
"Art. IV, Sec. 3, Par. 1. 
"Art. IV, Sec. 3, Par. 2. 



8 EELATIOlSr BETWEEN THE GOVERNMENTS. 

gress shall have power to dispose of and make all needful 
rules and regulations respecting the territory or other 
property belonging to the United States." In Dred 
Scott V. Sandford^* the court held that the power of 
making rules and regulations was intended to operate 
only in the territory belonging to the United States in 
1787, and not to extend to subsequently acquired terri- 
tory; but that narrow view is inconsistent with the judg- 
ment in the earlier case of A. I. Co. v. Canter ^^ and with 
the doctrine of many later cases, and has never been 
recognized in the administration of the government. 
There is nothing in the words of the Constitution, nor 
in the history of the times, to show that the framers of 
the Constitution looked upon any territory of the United 
States, excepting the future seat of government, in any 
other light than as territory to be organized into states 
so soon as the increase of population should render that 
advisable.^*^ The relation between the United States and 
the states obviously differs from the relation between the 
United States and the territories, in that, while the 
reservation to the states of the right of local self-govern- 
ment forbids the United States to exercise within a state 
any power of local government, the United States may, as 
respects any territory, under the express power of making 
rules and regulations, govern and administer that terri- 
tory. In other words, Congress holds a single relation 
to the states, but it holds a two-fold relation to the terri- 
tories. It regulates the foreign, and interstate relations 
of the states and their relations with the territories. It 
also regulates the relations of the territories with foreign 
countries, with the states, and with each other, and in 
addition to that, it regulates the internal affairs of each 

"19 How. 393. 

1^ 1 Pet. 511. 

"McAllister v. V. S., 141 V. S. 174, 187. 



THE TERRITOKIES. y 

territory. Congress is, therefore, the paramount and sole 
authority for every territory. As such, it may for any 
territory, as it has by an unbroken line of precedents 
from the adoption of the Ordinance of the Confederation 
for the government of the Northwest Territory to the 
Porto Rico Act in 1900, create a territorial form of gov- 
ernment, and limit or deny the exercise of merely political 
rights, such as the right of suffrage; ^"^ establish courts, 
which are local courts, and not courts of the United States, 
and whose judges hold their offices for such terms ^^ and 
under such conditions'^ as Congress may prescribe; 
impose taxation ; -^ and, generally, exercise all powers 
of government in matters of merely local concern. But it 
does not follow from this that Congress may exercise, 
even within a territory, arbitrary or despotic power. 
Bradley, J., said,^' ''Doubtless Congress, in legislating 
for the territories, would be subject to those fundamental 
limitations in favour of personal rights which are formu- 
lated in the Constitution and its Amendments; but such 
limitations would exist rather by inference and the gen- 
eral spirit of the Constitution from which Congress 
derives all its powers, than by any express and direct 
application of its provisions." Similar dicta of other 
eminent jurists could be quoted.^^ The objection to Mr. 
Justice Bradley's view is that, upon every principle of 
construction, the power in the Constitution to make rules 

" Murphy v. Eamsey, 114 U. S. 15. 

^' A. I. Co. V. Canter, 1 Pet. 511 ; Benner v. Porter, 9 How. 235 ; Clinton 
V. Englebrecht, 13 Wall. 434; Hornbuckle v. Toombs, 18 id. 648; Good v. 
Martin, 95 U. S. 90; Eeynolds v. U. S., 98 id. 145; City of Panama, 101 
id. 453. 

^=' McAllister v. U. S., 141 U. S. 174. 

'"Loughborough v. Blake, 5 Wheat. 317. 

=1 Mormon Church v. United States, 136 U. S. 44. 

^^ Many are cited in the able paper of the late Eichard C. Dale on 
"Implied Limitations upon the Exercise of the Legislative Power," 24 
American Bar Association Proceedings, 295. 



10 RELATION BETWEEN" THE GOVERNMENTS. 

and regulations for the territory of the United States 
is a power to make only such rules and regulations as 
may be made in conformity with the other provisions of 
the Constitution. That Constitution is the only standard 
of statutory validity, and its powers and restrictions are 
to be found only in its words as judicially construed. As 
the Court of Appeals of New York said in a well-con- 
sidered case,^^ ^ ^ If the courts may imply limitation, there 
is no bound to implication except judicial discretion, 
which must place the courts above the legislature and 
also the Constitution itself. ' ' This principle necessarily 
excludes any reliance upon inference from, or reference 
to, the general spirit of the Constitution as a satisfactory 
ground of restraint upon legislative freedom of action. 
Indeed, it is inconceivable that men who had signed, or 
approved, the Declaration of Independence, who had 
fought in the War of the Eevolution, or rejoiced in the 
victory then won for free government, could ever have 
contemplated the acquisition by the United States of any 
territory whose laws should be such only as Congress 
might arbitrarily impose. Those men who had success- 
fully rebelled against the English crown tolerated no 
despotism, benevolent or otherwise. They believed in a 
reign of law. With Junius,^* they thought that '4aws 
are made to guard against what men may do, not to trust 
to what they will do." They, therefore, framed their 
written constitution, and they looked to it, and to it only, 
for an enumeration of the powers which the sovereign 
people delegated to their government. In conformity 
with these principles, it has been decided that constitu- 
tional restrictions are in force in the territories and in 
the District of Columbia so far as regards trial by jury,^^ 

=^ Wynehamer v. The People, 13 N. Y. 428. 
^^ Letter to Sir William Blaekstone. 

■'' Callan v. Wilson, 127 U. S. 540 ; Thompson v. Utah, 170 id. 343 ; C. T. 
Co. V. Hof, 174 id. 1. See also Mormon Church v. U. S., 136 id. 1, 67. 



THE TEEKITORIES. 11 

and so far as regards the rights secured by the V Amend- 
ment.^^ 

If such be the correct view with regard to the legis- 
lative power of Congress over the internal affairs of the 
territories, the case would seem to be even clearer with 
regard to the regulation of the relations between any one 
territory and the states and other territories. The main 
reason for the adoption of the Constitution was to estab- 
lish a common authority, which would in the interest of 
the whole country impartially regulate foreign and inter- 
nal commerce, and secure to the citizens of each state 
and of every territory equal rights of person and of prop- 
erty in every other state and territory; and to that end 
the United States was vested with powers, and restrained 
in the exercise of those powers by certain expressed limi- 
tations. No one doubts that, so far as regards the states, 
Congress, being the creature of the Constitution, cannot 
exercise any power of legislation other than that which 
is, expressly, or by necessary implication, vested in it by 
the Constitution. It would also seem that even if Con- 
gress could, in the exercise of the power of making rules 
and regulations in its untrammelled discretion, create, 
and provide for the administration of, local governments 
in the territories, it can, nevertheless, only regulate com- 
merce as between the states and the territories, and impose 
duties on exports and imports to and from the states and 
the territories under the powers, and subject to the restric- 
tions, of the Constitution. Nevertheless, in the Insular 
Cases,^^ the Supreme Court has decided, several of the 

'"'Bauman v. Eoss, 167 U. S. 548. 

"Dowries v. BidweU, 182 II. S. 244; De Lima v. Bidwell, ibid. 1; 
Dooley v. U. S., iUd. 222; Dooley ■;;. TJ. S., 183 id. 151; Fourteen 
Diamond Rings, Emil J. Pepke, Claimant, v. U. S., ibid. 176. In 
Dorr V. United States, 195 U. S. 138, 154, Peckham, J., said that 
Downes v. Bidwell, supra, ''is authority only for the proposition 
that the plaintiff therein was not entitled to recover the amount of duties 



12 KELATION BETWEEN THE GOVERNMENTS. 

justices dissenting, that Congress could, after the acquisi- 
tion of Porto Rico as territory of the United States,^^ 
impose duties upon importations into ports of the United 
States from Porto Rico, and into ports of Porto Rico from 
the United States and foreign countries, differing from 
the duties imposed upon importations into the United 
States from foreign countries. In Hawaii v. Mankichi ^^ 
the court also held that a citizen of Hawaii could, after 
the acquisition of that island as territory of the United 
States, be legally convicted of crime without indictment 
by a grand jury and by the verdict of only a majority of 
a petit jury. 

In Dorr v. U. S.,^*^ the question was, whether in the 
absence of a statute of Congress expressly conferring the 
right, trial by jury is a necessary incident in judicial pro- 
cedure in the Philippine Islands, where demand for trial 
by that method has been made by the accused and denied 
by the courts established in the islands. A majority of 
the court held that a trial by jury is not necessary to the 
validity of a conviction, sentence, and punishment for 
crime in the Philippine Islands.^^ It is possible that a 

he had paid under protest upon the importation into the city of New York 
of certain oranges from the Port of San Juan, in the Island of Porto 
Eico, in November, 1900, after the passage of the act known as the 
Foraker Act. The various reasons advanced by the judges in reaching this 
conclusion, which were not concurred in by a majority of the court, are 
plainly not binding." In that view Fuller, C. J., and Brewer, J., con- 
curred. 

=«Aet of 12th April, 1900, 31 Stat. 77, c. 191. 

-"190 U. S. 197. Fuller, C. J., and Harlan, Brewer and Peckham, JJ., 
dissented. 

'» 195 U. S. 138. 

^^ Day, J., delivered the judgment of the court, and Fuller, G. J., and 
Brewer and Peckham, JJ., concurred in the result upon the authority of 
Hawaii v. Mankichi, 190 U. S. 197. Harlan, J., dissented, saying, p. 154: 
"In my opinion, guaranties for the protection of life, liberty, and property, 
as embodied in the Constitution, are for the benefit of all, of whatever race 
or nativity, in the states composing the Union, or in any territory, however 
acquired, over the inhabitants of which the government of the United States 
may exercise the powers conferred upon it by the Constitution." 



THE TERRITORIES. 13 

mistake was made in these cases in not distinguishing 
between the congressional powers of general, and of local, 
government as affecting the territories, and in not hold- 
ing that the Act of 12th April, 1900, was, in so far as it 
imposed duties, an act of general, and not of local, legis- 
lation, and, as such, subject to constitutional restrictions, 
and in not holding that the Constitution equally protects 
every inhabitant of any state or territory in his rights of 
person and of property. Mr. Justice White ^- concedes 
that a duty levied in the United States on goods coming 
from Porto Rico is not a local tax and, therefore, not an 
exercise of the power of local government, but he sup- 
ports the validity of such a tax upon the theory that Porto 
Rico had not been "incorporated" into the United States. 
Mr. Chief Justice Fuller ^^ seems to answer this view by 
calling attention to the provisions of the act imposing 
the duty, and at the same time creating a civil government 
for Porto Rico, constituting its inhabitants a body politic, 
giving it a governor and other officers, a legislative 
assembly, and courts with the right of appeal therefrom 
to the Supreme Court of the United States, and thereby 
making that island, whatever its situation before, then 
and thenceforth an organized territory of the United 
States; and Mr. Justice Harlan^"* pertinently suggests, 
that "if Porto Rico, although a territory of the United 
States, may be treated as if it were not a part of the United 
States, then New Mexico and Arizona may be treated as 
not parts of the United States, and subject to such legis- 
lation as Congress may choose to enact without any refer- 
ence to the restrictions imposed by the Constitution." 
The same learned justice also said ^^ that the doctrine of 

^' 182 U. S. 299. 

^IMd. 372. 

=*7&id 389. 

'= Hawaii v. MankieM, 190 U. S. 197, 240. 



14 EELATION BETWEEN THE GOVERNMENTS. 

the Insular Cases means, 'Hhat, if the principles now 
announced should become firmly established, the time may 
not be far distant when, under the exactions of trade and 
commerce, and to gratify an ambition to become the domi- 
nant political power in all the earth, the United States 
will acquire territories in every direction, which are in- 
habited by human beings, over which territories, to be 
called 'dependencies' or 'outlying possessions,' we will 
exercise absolute dominion and whose inhabitants will be 
regarded as 'subjects' or 'dependent peoples,' to be con- 
trolled as Congress may see fit, not as the Constitution 
requires, nor as the people governed may wish." 

It may well be doubted whether the advantages, com- 
mercial and otherwise, obtainable by the acquisition 
and retention of foreign colonial possessions will ever 
compensate the country for their cost in lives and in 
money, and for the difficulties to be encountered in the ex- 
tension of free institutions and constitutional government 
to peoples, whose history and traditions are foreign to 
any such system. But as we have acquired colonial pos- 
sessions, and have, by reason of such acquisition, assumed 
obligations to them, and to foreign nations, all that can 
now be done is to govern those peoples kindly, justly, and 
firmly, and to educate them s rapidly as possible for the 
duties of citizenship. 



CHAPTEE n. 

THE IMPLIED POWEES. 

9. The necessity of their existence. 

10. Their constitutional recognition. 

11. The test of the relation of the means to the end. 

12. Illustrations of the exercise of the implied powers. 

13. The legal tender question. 

The necessity of their existence. 

9. The Constitution was not framed to meet only the 
exigencies of the period of its formation, nor does it pur- 
port to be a code which with minute detail prescribes all 
that may be done and all that may not be done by Con- 
gress in the execution of the powers specifically granted.^ 
As Mr. Webster said in his argument in Gibbons v. 
Ogden,^ and as Marshall, C. J., repeated in his judgment 
in that cause,^ the Constitution enumerates, but does not 
define, the powers which it grants, nor does it prescribe 
the means which may rightfully be used in executing 
those powers, and without whose use the grant of the 
powers would be nugatory.* Therefore, if the Constitu- 
tion contained no clause recognizing the existence of 
powers which are subsidiary or incidental to the powers 
expressly granted, it would be impossible to avoid the 
conclusion that there is an implied grant of such inci- 
dental powers, for otherwise the powers expressly granted 
would be practically inoperative. Nor is the force of this 
conclusion at all affected by the X Amendment, for while 

^ McCulloch V. Maryland, 4 Wheat. 406 ; Martin v. Hunter 's Lessee, 1 id. 
326. 

=" 6 Webster 's Works, 9. 

» 9 Wheat. 189. 

* McCulloch V. Maryland, 4 Wheat. 407. 

15 



16 THE IMPLIED POWEBS. 

that amendment in terms forbids the exercise by Con- 
gress of any undelegated power, it does not forbid the 
exercise of powers which are delegated by implication.^ 

Their constitutional recognition. 

10. Section 8 of Article I of the Constitution declares 
that ''the Congress shall have power ... to make all 
laws which shall be necessary and proper for carrying 
into execution the foregoing powers, and all other powers 
vested by this Constitution in the government of the 
United States, or in any department or officer thereof." 
But, it may be said, who is to conclusively determine 
whether or not any statute is, within the terms of the 
Constitution, "necessary and proper for carrying into 
execution" a power granted by the Constitution to Con- 
gress? If Congress can so determine, obviously any and 
every act of Congress must be regarded as constitutional. 
If in the exercise of judicial jurisdiction the final deter- 
mination of that question is to be made by the court, what 
principles are to guide the judges in coming to a con- 
clusion, and by what test are they to determine the rela- 
tion between the means and the end, and the degree of 
the necessity and the propriety of the use of the particular 
means ? 

The test of the relation of the means to the end. 

11. The result of the authorities, so far as they afford 
an answer to this question, can be best stated by the 
quotation of a famous dictum originated by Mr. Ham- 
ilton ^ and paraphrased by Chief Justice Marshall in the 
judgment in McCulloch v. Maryland,"^ and which, in its 

^ Mr. Hamilton 's argument as to a national bank. 3 Lodge 's Hamilton 's 
Works, 183; McCulloch v. Maryland, 4 Wheat. 406. 

® Argument as to a national bank. 3 Lodge's Hamilton's Works, 190. 
' 4 Wheat. 421. 



ILLTJSTEATIONS OF IMPLIED POWERS. 17 

final perfected form, is as follows : "Let the end be legiti- 
mate, let it be within the scope of the Constitution, and 
all means which are appropriate, which are plainly 
adapted to the end, which are not prohibited, but consist 
with the letter and spirit of the Constitution, are consti- 
tutional. ' ' ^ This dictum means that Congress may, in 
the execution of a power expressly granted, adopt any 
means which (1) are not expressly prohibited by the Con- 
stitution, nor (2) inconsistent with the letter and spirit 
of the Constitution, and which are (3) not the only pos- 
sible means, nor an absolutely or indispensably necessary 
means, but an appropriate and plainly adapted means, to 
the attainment of an end authorized by the Constitution. 
From this it follows, that if the relation of the means to 
the end be shown to exist, and if the use of the particular 
means be not expressly or impliedly forbidden by the 
Constitution, the question of the degree of its appropriate- 
ness, of its greater or less adaptation, and of its relative 
or absolute necessity is purely political, and the deter- 
mination of Congress with regard thereto is binding upon 
the courts. 

Illustrations of the exercise of the implied powers. 

12. Under the doctrine of the implied powers, it has 
been held that Congress may enact statutes creating 
banking corporations as fiscal aids to the government ; ^ 
imposing upon national and state banks a tax upon the 
amount of the notes of state banks paid out by them; ^^ 
giving priority to the United States as a creditor in the 

* The opposing view, sustaining the strict construction of the Constitution, 
is, perhaps, most strongly put by Mr. Jefferson. Memoirs, Vol. IV, pp. 197, 
207, 526; 4 EUiot's Debates, 609. 

« McCulloch V. Maryland, 4 Wheat. 316 ; Osborn v. The Bank of the U. S., 
9 id. 738. 

'» Veazie Bank v. Tenno, 8 Wall. 533. 



18 THE IMPLIED POWERS. 

distribution of tlie assets of a bankrupt; ^^ declaring that 
tbe embezzlement by a guardian of his ward's pension 
granted by the United States is a crime against the 
United States; ^^ taxing lands in the District of Colum- 
bia; ^^ declaring it to be a crime to bring into the United 
States from a foreign place counterfeit coins forged in 
the similitude of coins of the United States; ^^ constitut- 
ing a judicial system to carry into execution the judicial 
powers vested by the Constitution in the United States ; ^^ 
regulating the carriage of the mails and determining 
what may be transported and what must be excluded 
from the mails ;^*' punishing for contempt others than 
members of Congress; ^^ protecting citizens of the United 
States in the exercise of the rights of suffrage at elections 
for members of Congress; ^^ authorizing a limited inter- 
course on prescribed conditions with the enemy in time 
of war; ^^ prescribing the effect to be given in state courts 
to judgments and decrees rendered in courts of the 
United States ;2^ authorizing the issue by courts of the 
United States of writs of habeas corpus ad subjiciendum 
in cases of restraint of personal liberty under the process 
of state courts issued in violation of rights claimed under 
the Constitution or laws of the United States ; ^^ author- 
izing the removal to the courts of the United States of 

" U. S. V. Fisher, 2 Cr. 358. 

^^U. S. V. Hall, 98 U. S. 343. 

" Loughborough v. Blake, 5 Wheat. 317. 

"U. S. V. Marigold, 9 How. 560. 

"Ableman v. Booth, 21 How. 506, 521. 

^^Ex parte Jackson, 96 U. S. 727; In re Eapier, 143 id. 110. 

"Anderson v. Dunn, 6 Wheat. 204; In re Chapman, 166 U. S. 661. But 
see Kilbourn v. Thompson, 103 id. 168. 

^^Ex parte Yarbrough, 110 U. S. 651. 

1" Hamilton v. Dilliu, 21 Wall. 73. 

^"Embry v. Palmer, 107 U. S. 3. 

^ Ex parte Eoyall, 117 U. S. 241; Ex parte Fonda, ibid. 516; In re Neagle, 
135 id. 1; Ohio -;;. Thomas, 173 id. 276; Boske v. Comingore, 177 id. 459; 
cf. Minnesota v. Brundage, 180 id. 499. 



ILLUSTRATIOlSrS OF IMPLIED POWERS. 19 

causes depending in state courts and involving questions 
of federal cognizance ; ^^ exercising the right of eminent 
domain with regard to land within the bounds of a state 
and held in private ownership ; ^^ in order to protect pur- 
chasers under the homestead laws of lands belonging to 
the United States but situated within the limits of a state, 
punishing those who conspire to intimidate such pur- 
chasers and drive them away from the land so pur- 
chased;^* prohibiting, under penalties, officers of the 
United States from requesting, giving to, or receiving 
from any other officer money or property, or other things 
of value, for political purposes; ^^ protecting against un- 
lawful violence prisoners accused of committing crimes 
against the United States,^^ and private citizens giving 
information against prisoners so held ; ^^ providing for the 
acquisition of territory; ^^ establishing consular tribunals 
in foreign lands ; ^^ and providing for the exclusion ^^ or 
expulsion ^^ of aliens from the limits of the United States. 

=^ Martin v. Hunter ^s Lessee, 1 Wheat. 304, 349; Bock v. Perkins, 139 
U. S. 628; Marshall v. Holmes, 141 id. 589; Martin v. B. & O. E., 151 id. 673. 

^Kohl V. U. S., 91 U. S. 367; Luxton v. N. E. Bridge Co., 153 id. 525; 
Chappell V. U. S., 160 id. 499 ; U. S. v. G. E. Ey., iUd. 668. 

-* U. S. V. Waddell, 112 U. S. 76. 

=== Ex parte Curtis, 106 U. S. 371 ; Stat. 15th Aug., 1876, c. 287, sec. 6. 

For further illustrations of the implied powers of legislation which Con- 
gress may exercise, see the judgments of Story, J., in Prigg v. Penna., 16 
Pet. 619; of Strong, J., in The Legal Tender Cases, 12 WaU. 457, 535; 
of Gray, J., in Juilliard v. Greenman, 110 U. S. 421, 444; of Miller, J., 
in Ex parte Yarbrough, ihid. 658, and in In re Neagle, 135 id. 1, and of 
Bradley, J., in Mormon Church v. U. S., 136 id. 1. In Downes v. Bidwell, 
182 id. 244, and again in Dooley v. U. S., 183 id. 151, the court sustained 
an act of Congress which imposed duties for the exclusive benefit of those 
who were not citizens of the United States. 

=" Logan V. U. S., 144 U. S. 263. 

^^ In re Quarles and Butler, 158 U. S. 532. 

=« A. I. Co. V. Canter, 1 Pet. 511 ; De Lima v. Bidwell, 182 U. S. 1. 

=» In re Eoss, 140 U. S. 453. 

^"Chinese Exclusion Case, 130 U. S. 581; Lem Moon Sing v. U. S., 158 
id. 538. 

=^rong Tue Ting v. U. S., 149 U. S. 698; Japanese Immigrant Case, 
189 id. 86. 



20 THE IMPLIED POWERS. 

The legal tender question. 

13. It has also been held that Congress may issue a 
paper currency and declare that that currency shall be 
a legal tender in payment of debts. Until in 1862 the 
financial needs of the government in carrying on a war 
for the suppression of the rebellion rendered it, in the 
opinion of Congress, necessary that the treasury notes 
of the United States should be made a legal tender in 
the payment of debts, neither statesmen nor jurists had 
asserted that Congress had, under the Constitution, the 
power of making anything but gold or silver coin a legal 
tender. The acts of Congress of 25th February, 1862, 
11th July, 1862, and 3d March, 1863,^^ declared that the 
notes issued thereunder should be "lawful money and 
a legal tender in payment of all debts, public and private, 
within the United States, except duties on imports, etc. ' ' 
Under these acts it has been decided that neither taxes 
imposed by state authority,^^ nor private obligations 
payable by their terms in gold or silver coin,^^ are debts 
within the terms of the acts of Congress dischargeable 
by payment in legal tender notes. In Hepburn v. Gris- 
wold,^^ the court held that the Legal Tender Acts applied 
to debts contracted before as well as to debts contracted 
after the enactment of those statutes, and that, so far as 
they applied to debts contracted before their passage, the 
statutes were unconstitutional, but in the Legal Tender 
Cases ^^ Hepburn v. Griswold was overruled, so far as 
regards the second branch of the proposition laid down 
in it, and the constitutionality of the Legal Tender Acts 

'^ 12 Stat. 345, 532, 709. 

^Lane County v. Oregon, 7 Wall. 71; Hagar v. Eeclamation District, 
111 U. S. 701. 

»*Bronson v. Eodes, 7 Wall. 229; Butler v. Horwitz, ibid. 258; Bronson 
V. Kimpton, 8 id. 444. 

^8 Wall. 603. 

=«12 Wall. 457. 



THE LEGAL TEISTDER QUESTION. 21 

was sustained, the ground of decision being that the 
power to impress the notes of the government with the 
quality of legal tender, though not expressed in the Con- 
stitution, was '^ necessary and proper for carrying into 
execution" the express powers to ''coin money," 'Ho 
regulate the value thereof," "to pay the debts," "to 
borrow money," "to raise and support armies," and "to 
provide and maintain a navy ; ' ' that the Constitution does 
not expressly prohibit the issue of legal tender notes by 
the United States; that their issue is not inconsistent 
with the letter or the spirit of the Constitution, and that 
the end being constitutional and the means being appro- 
priate, the degree of its appropriateness is subject to 
legislative, and not judicial, determination. The Legal 
Tender Cases are followed and supported by Dooley v. 
Smith,^^ Bigler v. Waller ,^^ N. & W. R. v. Johnson ^^ and 
Julliard v. Greenman,^^ in the last of which cases it was 
held, that the power to make treasury notes a legal tender 
exists in time of peace as well as in time of war, and that 
legal tender notes when redeemed by the Treasury and 
reissued under the Act of 31st May, 1878, retain their 
legal tender quality. 

The legal tender which the law compels a creditor to 
accept in satisfaction of a debt payable in money should 
never be anything other than that money which has a 
market value as a commodity, independently of any gov- 
ernmental fiat and of all legal tender laws. The giving of 
the legal tender quality to currency of inferior purchasing 
power has never succeeded in increasing that purchasing 
power, but it has in many instances enabled debtors to 
defraud creditors. 

^' 13 Wall. 604, 
=>» 14 Wall. 297. 
^» 15 Wall. 195. 
*» 110 U. S. 421. 



CHAPTER in. 

TAXATION. 

14. Taxation defined and limited. 

15. Taxation by the United States. 

16. Kestrictions upon federal taxation. 

17. Taxation of exports. 

18. Direct taxation. 

19. Eequirement of uniformity. 

20. Taxation in the territories. 

21. Exemption of state agencies from taxation by the United States. 

22. Charges which are not taxes exempt from constitutional restraints. 

23. Taxation by the states. 

24. Expressed restraints upon state taxation. 

25. Implied restraint upon state taxation resulting from the federal 

supremacy. 

26. Taxation of national banks. 

27. State taxation as affected by the prohibition of the impairment of 

the obligation of contracts. 

28. State taxation as affected by the grant to Congress of the power of 

regulating commerce. 

Taxation defined and limited. 

14. Taxation is the compulsory exaction by a govern- 
ment, in the exercise of its sovereignty, of a payment of 
money or surrender of property by any person, natural 
or corporate, who, or whose property so taxed, is subject 
to the sovereign power of that government.^ Taxation 
operates upon real property and upon tangible personal 
property by reason of its situs or presence within the 
territory of the taxing power.^ It operates upon choses 
in action by reason of the subjection of the owner thereof 

^ The State Freight Tax, 15 Wall. 277 ; McCulloch v. Maryland, 4 Wheat. 
420 ; Ashley v. Eyan, 153 U. S. 436 ; N. Y., L. E. & W. E. v. Pennsylvania, 
ibid. 628; D. & H, C. Co. v. Pennsylvania, 156 id. 200; W. U. T. Co. v. 
Taggart, 163 id. 1 ; Savings Society v. Multnomah County, 169 id. 421 ; 
Dewey v. Des Moines, 173 id. 193. 

^Mager v. Grima, 8 How. 490; Coe v. Errol, 116 U. S. 517; P. P. C. Co. v. 
Pennsylvania, 141 id. 18; C, C, C. & St. L. Ey. v. Backus, 154 id. 439; 
Savings Society v. Multnomah County, 169 id. 421; Bristol v. Washington 
County, 177 id. 133. 

22 



TAXATION" DEFINED AND LIMITED. 23 

to the jurisdiction of the government imposing the tax.^ 
Every possible exaction of money or property by a gov- 
ernment from those who are subject to its jurisdiction is 
not a tax; thus, a duty of so much per passenger, imposed 
by the United States in the exercise of the power to regu- 
late commerce on owners of vessels bringing passengers 
from foreign ports into ports of the United States, in 
order to raise a fund to mitigate the evils incident to 
immigration, is ''not a tax or duty within the meaning 
of the Constitution ; " * for, as Miller, J., said in the judg- 
ment in that cause,^ ''the money thus raised, though 
paid into the treasury, is appropriated in advance to the 
uses of the statute, and does not go to the general sup- 
port of the government. It constitutes a fund raised 
from those who are engaged in the transportation of 
those passengers, and who make profit out of it, for the 
temporary care of the passengers whom they bring among 
us and for the protection of the citizens among whom they 
are landed. ' ' Nor is a tax levied, in the strict sense of the 
word, when the cost of executing the banking laws is met 
by a charge on bank notes, and a bill for that purpose 
need not originate in the House of Representatives.^ On 
the same principle, a charge made by a state for facili- 
ties furnished by it, directly or indirectly, for the move- 
ment of commerce, in the form of improved waterways,"^ 
or wharves,^ or railways,^ or a charge on telegraph com- 

* Bonaparte v. Tax Court, 104 U. S. 592 ; Nevada Bank v. Sedgwick, ibid. 
Ill; Kirtland v. Hotchkiss, 100 id. 491; N. Y., L. E. & W. E. v. Penn- 
sylvania, 153 id. 628 ; D. & H. C. Co. v. Pennsylvania, 156 id. 200. 

* The Head Money Cases, 112 U. S. 580. 
■^P. 595. 

* Twin City Bank v. Nebeker, 167 U. S. 196. 

^Huse V. Glover, 119 U. S. 543; Sands v. M. E. I. Co., 123 id. 288; 
L. & P. Co. V. Mullen, 176 id. 126. But see Harman v. Chicago, 147 id. 396. 

•Packet Co. v. Keokuk, 95 U. S. 80; Packet Co. v. St. Louis, 100 id. 423; 
Vicksburg v. Tobin, ibid. 430 ; Packet Co. v. Catlettsburg, 105 id. 559 ; Trans- 
portation Co. V. ParkersbuTg, 107 id. 691 ; O. P. Co. v. Aiken, 121 id. 444. 

» B. & O. E. V. Maryland, 21 WaU. 456. 



24 TAXATION. 

panies for the use of the streets for their poles, or for the 
governmental supervision of their poles and wires/ ^ or 
a charge on adjoining property for local improvements, ^^ 
or a charge for quarantine or other examination,^^ cannot 
be said to be a tax. The power of taxation is vested in 
the legislative department of the government,^ ^ but it 
may be delegated by states to political subdivisions, such 
as counties and municipalities,^* and a state may deter- 
mine the bounds of a municipality and prescribe its rate 
of taxation.^ ^ By whomsoever exercised, or to whom- 
soever delegated, the power can only be exercised for 
public purposes. Taxes, therefore, cannot be imposed in 
aid of enterprises strictly private, such as the establish- 
ment of manufactories^*' or of private grist mills; ^'^ but 
when the purpose is public, though not directly connected 
with the administration of government, taxes may right- 
fully be laid to aid in its accomplishment, as in the cases 
of state reform schools; ^^ grist mills required by statute 
to grind for all customers on payment of certain tolls; ^® 

^o St. Louis V. W. U. T. Co., 148 U. S. 92 ; P. T. C. Co. v. Baltimore, 156 
id. 210; W. U. T. Co. v. New Hope, 187 id. 419. Charges for supervision 
in P. T. C. Co. V. New Hope, 192 id. 55 ; P. T. C. Co. v. Taylor, Hid. 64, were 
excessive and therefore invalid. See also A. & P. T. Co. v. Philadelphia, 
190 id. 160. 

"I. C. E. V. Decatur, 147 U. S. 190; Peake v. New Orleans, 139 id. 342 
Fallbrook Irr. Dist. v. Bradley, 164 id. 112; Ford v. D. & P. L. Co., ibid. 662 
cf. Spencer v. Merchant, 125 id. 345. See also Norwood v. Baker, 172 id. 
269 ; Dewey v. Des Moines, 173 id. 193 ; French v. B. A. P. Co., 181 id. 324 
Tonawanda v. Lyon, ibid. 389; Carson v. Brockton S. Com., 182 id. 398 
King V. Portland, 184 id. 61; Voigt v. Detroit, ibid. 115; Goodrich v. 
Detroit, ibid. 432. 

^^ Morgan v. Louisiana, 118 U. S. 455; N., C. & St. L. Ey. v. Alabama, 
128 id. 96. See also C, C. & A. E. v. Gibbes, 142 id. 386, 

1^ Meriwether v. Garrett, 102 U. S. 472. 

"Gilman v. Sheboygan, 2 Bl. 510; U. S. v. New Orleans, 98 U. S. 381. 

^' Kelly V. Pittsburgh, 104 U. S. 78. 

"Loan Assn. v. Topeka, 20 Wall. 655; Parkersburg v. Brown, 106 U. S. 
487; Cole v. La Grange, 113 id. 1. 

" Osborne v. County of Adams, 106 U. S. 181, 109 id. 1. 

" County of Livingston v. Darlington, 101 U. S. 407. 

^' Burlington v. Beasley, 94 U. S. 310. 



TAXATION BY THE UNITED STATES. 25 

the improvements of water powers of rivers for general 
purposes; 2" the payment of bomities to volunteer soldiers 
in time of war ; ^^ or for the construction of railways.^^ 
When bonds, though issued in aid of private purposes, on 
their face appear to have been issued for public purposes, 
they are valid and enforceable in the hands of bona fide 
holders for value and without notice.^^ 

Taxation by the United States. 

15. Section 8 of Article I of the Constitution declares 
that 'Hlie Congress shall have power to lay and collect 
taxes, duties, imposts, and excises, to pay the debts and 
provide for the common defense and general welfare of 
the United States; but all duties, imposts, and excises 
shall be uniform throughout the United States." At 
one period in the history of the country political parties 
were at issue as to the construction to be given to this 
section of the Constitution, the Federalists contending 
that the section granted in express terms three sub- 
stantive and independent powers, namely, (1) to lay and 
collect taxes, duties, imposts, and excises, (2) to pay the 
debts, and (3) to provide for the common defense and 
general welfare of the United States ; and the Democrats 
asserting that the section granted but one substantive 
power, that to lay and collect taxes, duties, imposts, and 
excises, and limited the exercise of that power to the pur- 
pose of paying the debts and providing for the common 
defense and general welfare of the United States. The 
Federalist view was open to the objection that a power 

=« Blair v. Cuming County, 111 U. S. 363. 

" Middleton v. Mullica Township, 112 U. S. 433. 

^- Eogers v. Burlington, 3 Wall. 654 ; Queensbury v. Culver, 19 id. 83 ; 
Taylor v. Ypsilanti, 105 U. S. 60; Olcott v. The Supervisors, 16 Wall. 678; 
E. Co. V. County of Otoe, ibid. 667; Young v. Clarendon Township, 132 U. S. 
340. See also Wilkes County Comrs. v. Coler, 190 id. 107. 

^ Hackett v. Ottawa, 99 U. S. 86 ; Ottawa v. National Bank, 105 id. 343 ; 
Ottawa V. Carey, 108 id. 110, 118. 



26 TAXATION. 

to legislate for the common defense and general welfare 
of the United States would authorize Congress to d© any- 
thing and everything, and would render superfluous the 
delegation of other express powers of legislation in the 
same section; but the Democratic view, however sound 
in theory, could never be judicially affirmed, for, as Con- 
gress has admittedly some power of taxation, a court, 
looking, as it is bound to look, not at the question of ex- 
pediency but solely at the question of power, could never 
determine an act of Congress imposing a tax to be uncon- 
stitutional because it was intended for some purpose 
other than that of paying the debts and providing for 
the common defense and general welfare of the United 
States. That restraint, therefore, upon the congressional 
power of taxation, if it be a restraint, is of moral, and 
not of legal, sanction. 

Restrictions upon federal taxation. 

16. ''The power of Congress to tax ... is given in 
the Constitution with only one exception and only two 
qualifications. Congress cannot tax exports, and it must 
impose direct taxes by the rule of apportionment, and 
indirect taxes by the rule of uniformity. Thus limited, 
and thus only, it reaches every subject and may be exer- 
cised at discretion. ' ' ^^ The constitutional power of tax- 
ation vested in the United States is coextensive with the 
territory ''subject to their jurisdiction." It does not oper- 
ate in a port of one of the United States during a tempor- 
ary occupation of that port by the armed forces of a public 
enemy,^^ nor in foreign territory temporarily occupied 
by the armed forces of the United States,^^ but during 
such temporary occupation the armed forces in possession 

=* License Tax Case, 5 Wall. 471. See McCray v. U. S., 195 U. S. 27. 
=' IT. S. V. Eice, 4 Wheat. 246. 
=" Fleming v. Page, 9 How. 603. 



EESTEICTIONS UPON FEDEKAL TAXATION. 27 

of such territory may, under the rules of international 
law, levy and collect such duties and taxes as the military 
authorities impose.^^ On the other hand, the constitu- 
tional power of taxation does operate upon foreign ter- 
ritory acquired by treaty, but only from and after the 
ratification of the treaty. Thus, importations into Cali- 
fornia after the ratification of the treaty which ended 
the war with Mexico and ceded California to the United 
States were subject to duties under the then tariff laws 
of the United States, which took effect immediately upon 
the ratification of the treaty.^^ Conversely, from and 
after the ratification of the treaty which ended the war 
with Spain and ceded Porto Rico and the Philippines to 
the United States, those islands ceased to be foreign terri- 
tory, and thereafter, but only until Congress otherwise 
provided,-^ importations from those islands into other 
ports of the United States were not subject to duty under 
the then tariff laws of the United States,^*^ and, so far as 
regards the Philippines, that conclusion was not affected 
by the continuance in insurrection against the United 
States of those who had previously been in insurrection 
against Spain. The constitutional power of taxation is, 
therefore, operative within the states, in the District of 
Columbia,^^ and also in the territories, but only to the 
extent of the constitutional grant and subject to the limi- 
tations imposed by the Constitution, with the important 
exceptions that in Porto Rico and the Philippines its 
operation is not subject to the constitutional requirement 
of uniformity,^" and that articles exported from the states 

" Dooley v. U. S., 182 U. S. 222. 
^ Cross V. Harrison, 16 How. 164. 
=^ Downes v. Bidwell, 182 U. S. 244. 

^•De Lima v. Bidwell, 182 U. S. 1; Fourteen Diamond Eings, Pepke, 
Claimant, v. U. S., 183 id. 176. 

" Loughborough v. Blake, 5 Wheat. 317. 
=^ Downes v. Bidwell, 182 U. S. 244. 



28 TAXATION. 

to Porto Rico may be taxed by duties levied upon those 
articles when ''imported from the United States" into 
Porto Rico.^^ 

Taxation of exports. 

17. "No tax or duty shall be laid on articles exported 
from any state. "^* The constitutional language is "no 
tax or duty," and "the requirement is that exports shall 
be free from any governmental burden. ' ' ^^ The word 
"export," as used in the constitutional prohibition of 
state imposition of duties,^*^ has been held to apply only 
to foreign, and not to interstate, commerce,^'^ and the same 
construction has been given by a divided court ^^ to the 
prohibition of the imposition by the United States of 
duties on exports, as affecting goods, to quote the words 
of the statute, "imported from the United States" into 
Porto Rico under the Act of 12th April, 1900.^^ Yet the 
place at which the duty is levied and collected ought not 
to be held to change the character of the duty. As Mar- 
shall, C. J., suggested,*^ a duty upon exports would not 
cease to be such when collected by a revenue cutter cruis- 
ing off the coast. If so, why does the duty cease to be 
a duty upon exports when collected for the United States 
by officers of the United States under an act of Congress 
at an island in the West Indies ceded to, owned by, and 
governed by the United States, and when the act in terms 
imposes the duties upon goods "imported from the United 
States!" It is obviously the fact that "no article can be 
imported from one state into another which is not at the 

^^Dooley v. U. S. (second case), 183 U. S. 151. 

^* Article I, Sec. 9, Par. 5. 

^^Per Brewer, J., Fairbank v. U. S., 181 U. S. 283. 

^"Article I, Sec. 10, Par. 2. 

''^Woodruff V. Parham, 8 Wall. 123. 

^^Dooley v. U. S. (second case), 183 U. S. 151. rour justices dissented. 

»»31 Stat. 77, c. 191, sees. 2 and 3. 

^ Brown v. Maryland, 12 Wheat. 445. 



TAXATION OF EXPORTS. 29 

same time exported from the former/' *^ It would seem 
to be equally clear that goods 'imported from the United 
States" into Porto Rico are as certainly goods exported 
from the United States to Porto Rico. It may also be 
suggested that the constitutional prohibition applies in 
terms to articles exported from any state without regard 
to their destination, and that there is nothing in the terms 
of the provision, or in its context, or in the history of 
the Constitution, to support a judicial qualification of 
the provision by adding thereto the words ''to foreign 
countries." In the view of the court, Porto Rico is at 
one and the same time ''foreign" in order to justify the 
collection at ports of the United States of duties upon 
imports from Porto Rico, and "domestic" in order to 
justify the collection at Porto Rico of duties upon exports 
from the United States. 

Internal revenue stamps required to be placed by the 
manufacturer upon articles made for exportation were 
held not to fall within the prohibition, when "in- 
tended for no other purpose than to separate and 
identify" that "which the manufacturer desires to 
export, and thereby instead of taxing it to relieve it 
from the taxation" to which articles intended for 
domestic use are subjected ; ^^ and the Constitution does 
not prohibit the imposition of the same amount of 
internal revenue taxation upon goods exported as upon 
similar goods intended for domestic consumption ; ^^ but, 
on the other hand, a specific stamp duty imposed "for 
and in respect of the . . . paper . . . upon which . . . 
shall be written or printed ... a bill of lading, ' ' and not 
graduated in amount according to the quantity or value 
of the articles covered thereby, has been held, in a recent 

*^ Per Miller, J., in Woodruff v. Parhain, 8 Wall. 123. 

^ Pace V. Burgess, 92 U. S. 372 5 Turpin v. Burgess, 117 id. 504, 

*^ CorneU v. Coyne, 192 U. S. 418. 



30 TAXATION. 

case,*^ by a divided court, four justices dissenting, to be 
in effect a tax upon the articles covered by the bill of 
lading, and, therefore, as applied to foreign and outgoing 
bills of lading, a tax upon exports. 

Direct taxation . 

18. "No capitation or other direct tax shall be laid, 
unless in proportion to the census or enumeration herein- 
before directed to be taken. "^^ "Ordinarily all taxes 
paid primarily by persons who can shift the burden upon 
some one else, or who are under no legal compulsion to 
pay them, are considered indirect taxes," ^^ and taxes im- 
posed upon individuals in their personal capacity, or upon 
individuals in respect of their ownership of their property, 
are direct taxes.*^ In 1796 the court decided*^ that 
a tax on carriages for the conveyance of persons under 
the act of 1794^^ was an excise, and, therefore, an 
indirect tax. In the argument Alexander Hamilton 
said, "The following are presumed to be the only 
direct taxes: capitation or poll taxes; taxes on lands 
and buildings; general assessments, whether on the 
whole property of individuals or on their whole real 
or personal property. All else must of necessity be con- 
sidered as indirect taxes." Chase, J., said that he was 
inclined to think, but did not give a judicial opinion, 
"that the direct taxes contemplated by the Constitution 
are only two, to wit, a capitation, or poll tax, simply 
without regard to property, possession, or any other cir- 
cumstances; and a tax on land."^^ Paterson, J., said, 

« Tairbank v. U. S., 181 U. S. 283. 

^ Constitution, Art. I, Sec. 9, Par. -1. 

« Per Fuller, C. J., Pollock v. F. L. & T. Co., 157 U. S. 558. 

*' Hon. Geo. F. Edmunds ' Argument, iMd. 491. 

*« Hylton V. U. S., 3 Dall. 171. 

^-l Stat. 373. 

^''3 Dall. 175. 



DIRECT TAXATION. 31 

'^Whether direct taxes, in the sense of the Constitution, 
comprehend any other tax than a capitation tax, and 
tax on land, is a questionable point. ' ' ^^ Iredell, J., 
said, ''Perhaps a direct tax , . . can mean nothing but 
a tax on something inseparably annexed to the soil; 
something capable of apportionment under all such cir- 
cumstances. " ^- Wilson, J., contented himself with af- 
firming the constitutionality of the tax in question.^^ It 
was held in later cases that neither taxes on personal in- 
incomes ^* under the Act of 5th August, 1861,^^ and its sup- 
plements ; nor taxes on distilled spirits ; ^^ nor taxes on 
manufactured tobacco ; ^^ nor taxes on the business of 
refining sugar, measured by the gross annual receipts of 
the refiners ; ^^ nor succession duties on the devolution 
of title to real or personal estate ; ^^ nor stamp duties on 
a memorandum of sale of a certificate of stock,^*^ or on 
an ' ' agreement of sale or agreement to sell any products 
or merchandise at any exchange, or board of trade, or 
other similar place, either for present or future de- 
livery ; " ^^ nor taxes on the notes of state banks paid 
out by national banks ; ^^ nor taxes on the receipts of in- 
surance companies from premiums and assessments,^^ 
are direct taxes, but that all such taxes are imposts or 

'^Ibid. 177. 

'"'Ibid. 183. 

'"^IMd. 184. 

'^Springer v. U. S., 102 U. S. 586. 

=* 12 Stat. 309. 

=^»U. S. V. Singer, 15 WaU. 111. 

"Patton V. Brady, 184 U. S. 609, 

=' S. S. E. Co. V. McClain, 192 U. S. 397. 

™ Scholey v. Eew, 23 Wall. 331; Knowlton v. Moore, 178 U. S. 41, 79, 83; 
Murdock v. Ward, ibid. 139, 

^ Thomas v. U. S., 192 IJ. S. 363. 

^^ Nicol V. Ames, 173 U. S. 509. The Union Stock Yards in Chicago are 
a ' ' similar place ' ' within the meaning of the taxing act. 

^ V. Bank v. Fenno, 8 Wall. 533 ; National Bank v. U. S., 101 U. S. 1. 

«^ P. I. Co. V. Soule, 7 Wall. 433. 



32 TAXATION. 

excises. It has been suggested that the tax under con- 
sideration in the Hylton case was in reality a tax upon 
transportation and as such capable of transference to 
the person carried, and, therefore, when imposed upon 
the carrier clearly an indirect, and not a direct, tax ; that 
the tax under consideration in Singer's case was clearly 
an excise ; that the tax under consideration in the Veazie 
Bank case was in its own nature not a tax at all, but an 
exercise by Congress of the power to prohibit the issue 
of circulation by state banks in order to stimulate the 
formation of national banks; and that the tax under 
consideration in the Insurance Company's case was an 
indirect tax because capable of transference to the 
policy-holders paying premiums and assessments. 
Springer's case was decided long after the income tax of 
1861 had been repealed, and when the popular and pro- 
fessional interest in the subject had ended, for no one 
then believed that this country would ever again be 
called upon to pay an income tax under the laws of the 
United States. It is the consensus of economic authori- 
ties that income tax laws, even when wisely framed, 
should be reserved only for great public emergencies, 
for the reason that they are necessarily unequal in oper- 
ation in that they fall most heavily on those who 
conscientiously make full returns; and that when re- 
sorted to they should tax impartially the surplus income 
of every citizen, over and above that minimum which 
suffices for the necessities of the life of an individual, and 
that incomes received from salaries, or from professional 
compensation, if taxed at all, should, by reason of their 
terminable character, be less heavily taxed than incomes 
derived from invested funds. Under the income tax 
legislation of 1861 and its supplements, when the amount 
exempted was $600 the tax was paid by only four hundred 



DIRECT TAXATION. 33 

and sixty thousand persons, and when the amount ex- 
empted was $1,000 the tax was paid by less than two 
hundred and fifty thousand persons. The state of New 
York paid nearly one-third of that tax, and the states of 
New York and Pennsylvania paid nearly one-half thereof. 
The 23opulation and the wealth of the country had largely 
increased in the years preceding 1894, but it is certain 
that by reason of the larger amount exempted from tax- 
ation under the act of that year, the burden of the tax 
imposed by that law would have been borne by a relatively 
small number of persons, certainly not more than two 
per cent, of the population of the country. That law was 
a very objectionable specimen of class legislation. Not 
content with exempting the minimum amount which 
suffices for the necessities of the life of an individual, and 
which in 1894 certainly did not exceed $600, it enlarged 
the exemption to $4,000. It made no distinction between 
income received from salaries, or as professional com- 
pensation, and income derived from invested securities. 
While purporting to exempt from all taxation the incomes 
of charities, it yet taxed so much of their incomes as were 
derived from investments in corporate shares. It taxed 
as income the receipt by a widow or an orphan of that 
amount of insurance upon the life of the husband or 
father, which might possibly constitute the whole princi- 
pal fund for the support of the beneficiaries. It taxed the 
interest received from investments in state, county, and 
municipal securities. It made no distinction between the 
rental received from productive land and moneys received 
from the sale of minerals, the taking away of which 
diminishes the principal. In taxing the rental of land, it 
necessarily taxed the land itself. It taxed profits realized 
on sales of real estate within two years, and it forbade a 
deduction for losses on like sales. It allowed a deduction 



34 TAXATION". 

of $4,000 from the income of an unmarried person and it 
permitted only one exemption to that amount from the 
aggregate incomes of a family composed of parents, 
minor children, or husband and wife. It taxed without 
exemption income derived from corporate securities and it 
permitted the exemption in the case of incomes otherwise 
derived. It vested oppressive, arbitrary, and uncontroll- 
able power in the tax collectors. It was an example of all 
that a tax law ought not to be. The constitutionality of 
that act came before the Supreme Court of the United 
States in 1895.®* It was argued that the judgment in 
Springer v. United States ^^ did not establish any rule of 
property, and was, therefore, open to reconsideration; 
that that judgment was based solely on the dicta in Hylton 
V. United States ; ®® and that, even if those dicta were bind- 
ing authorities, capitation taxes were in reality nothing 
else than taxes imposed upon persons, either per capita, 
or graded in amount according to the possessions or in- 
come of the person ; that taxes on the income of real estate 
were in substance taxes on the real estate from which the 
income was derived; and that taxes on the income from 
securities issued by a state, or by any political sub-division 
thereof, were taxes upon agencies of state government. It 
was argued in reply that the dicta in Hylton 's case had 
not only been recognized by jurists and commentators as 
fixing the construction of the Constitution, but had also 
received the approval of the court in Springer 's case ; that 
the term '^ capitation" taxes as understood by the framers 
of the Constitution, meant nothing more than poll taxes; 
and that the income of any person, from whatever source 
derived, was a legal entity, entirely distinct from its 
sources, and, therefore, independently taxable; and that 

^ Pollock V. F. L. & T. Co., 157 U. S, 429, and, on rehearing, 158 id. 601. 
<^ 102 U. S. 586. 
•' 3 DaU. 175. 



REQUIREMENT OF UNIFORMITY. 35 

witli the policy of the legislation the court had nothing to 
do, and could only concern itself with the grounds of legal 
objection. At the first hearing it was decided, two justices 
dissenting, that so much of the act as provided for lev^^- 
ing taxes upon incomes derived from real estate was in- 
valid, because such taxes are in legal effect taxes upon real 
estate, and are, as such, direct taxes, and can only be im- 
posed according to the rule of apportionment, and that so 
much of that act as taxed income derived from invest- 
ments in state, county, and municipal securities was invalid 
because taxes on the states and on their instrumentalities 
of government. The justices who heard the argument 
were, however, equally divided, and, therefore, expressed 
no opinion, as to the other questions raised. Upon the re- 
hearing, the court decided, four justices dissenting, that, 
in addition to the points decided at the first hearing, a tax 
on an individual in respect of his income derived from 
real, or personal, property is a direct tax, and, therefore, 
can be laid only under the rule of apportionment. The 
opinion of the profession and the sober second thought of 
the country have approved the judgment of the court. The 
requirement that direct taxes must be ''laid in proportion 
to the census or enumeration" is not violated by a statu- 
tory imposition of a penalty for non-payment of the 
tax ; ^'^ and the amount of penalty to be enforced is a 
matter within legislative discretion.^^ 

Requirement of uniformity. 

19. '"All duties, imposts, and excises shall be uniform 
throughout the United States. ' ' ^^ The requirement of 
uniformity means that there must be geographical uni- 
formity, or, in other words, that ''wherever a subject is 

«^De Treville v. Smalls, 98 U. S. 517. 
°*W. U. T. Co. V. Indiana, 165 U. S. 304. 
'^Article I, Sec. 8, Par. 1. 



36 TAXATION. 

taxed anywhere, the same must be taxed everywhere 
throughout the United States, and at the same rate, ' ' '^^ 
and taxation is uniform, when it operates with the same 
effect in all places where the subject of taxation is found, 
though that subject be not equally distributed in all parts 
of the United StatesJ^ Subjects of taxation may, in the 
discretion of Congress, be classified without impairment of 
uniformity, and, while the theory is that such classification 
should not be arbitrary, but must be based upon grounds 
of real distinction, yet, in view of the progressive in- 
heritance tax cases, '^^ it would be difficult to make a 
classification sufficiently arbitrary to justify a judicial de- 
termination that the classification violates the rule of 
uniformity. Sales of property at "any exchange, or 
board of trade, or other similar place" may be taxed, 
when sales otherwise made are not taxed.'^^ Inheritances 
may be taxed, even though the rate of taxation progress- 
ively increase according to the value and amount of the 
devise, bequest, or distributive share, and though there be 
discrimination in the rate as between lineals, collaterals, 
and strangers ; and, under the statute,"* the subject of tax- 
ation is not the corpus of the estate, but the amount of each 
particular devise, bequest, or distributive shareJ^ Though 
free from objection on constitutional grounds, the progres- 
sive inheritance tax law is a very objectionable exercise 
of legislative discretion, for it violates the fundamental 
American doctrine that all men are equal before the law, 
and that equality of rights implies equality of obligations, 
and it is of dangerous import in that it teaches the many 

™ Knowlton v. Moore, 178 U. S. 41, 84, per White, J. 

■^ The Head Money Cases, 112 U. S. 580. 

" Knowlton v. Moore, 178 U. S. 41 ; Murdock v. Ward, ibid. 139. 

'» Nicol V. Ames, 173 U. S. 509. 

^*Act of 13th June, 1898, 30 Stat. 448, c. 448. 

'' Knowlton v. Moore, 178 U. S. 41. 



TAXATION IN THE TEEKITORIES. 37 

to expect tliat the necessary expenditures of government 
will be met by taxation to be levied on the few. 

Taxation in the territories. 

20. Long ago the court said in an unanimous judg- 
ment, '^ pronounced by Marshall, C. J., '^Does this term 
'the United States,' designate the whole, or any particular 
portion, of the American Empire? Certainly this ques- 
tion can admit of but one answer. It is the name given to 
our great republic, which is composed of states and terri- 
tories. The District of Columbia, or the territory west 
of the Missouri, is not less within the United States than 
Maryland or Pennsylvania; and it is not less necessary, 
on the principles of our Constitution, that uniformity in 
the imposition of imposts, duties, and excises, should be 
observed in the one than in the other. ' ' This expression 
of opinion by the greatest of the judicial commentators on 
the Constitution was not a dictum, obiter or otherwise, but 
was a statement of the rule of law which was applied to, 
and which decided, the case before the court. Nevertheless 
that case has been, in effect though not in form, overruled, 
for it has been decided by a divided court, four justices dis- 
senting and the five justices constituting the majority 
agreeing only in the judgment, and differing widely in the 
reasoning upon which it rests, that the Act of 12th April, 
1900,'^'^ imposing for a limited period certain duties upon 
importations into ports of the United States from Porto 
Rico, and into ports of Porto Rico from the United States, 
differing from the duties imposed upon importations into 
the United States from foreign countries, is constitutional, 
and that, from and after the taking effect of that act, the 
duties thereby imposed were rightfully collected.'^^ The 

™ Loughborough v. Blake, 5 Wheat. 317. 

" 31 Stat. 77, c. 191. 

'«Dowues V. Bidwell, 182 U. S. 244. 



38 TAXATION. 

judgment in that case is, therefore, authority for the 
proposition that after a territory has been acquired by 
treaty and has so far become a part of the United States 
that goods brought from it to ports of the United States 
are not subject to the duties imposed by the laws of the 
United States upon importations from foreign countries,'^^ 
Congress may, by subsequent legislation, organize it as a 
territory of the United States, and by the same act impose 
upon it taxation by tariff which if imposed upon any state 
or upon any territory on the continent of North America 
would be confessedly unconstitutional, because a violation 
of the rule of uniformity. That the justices who con- 
curred in the judgment did not agree in the reasoning 
upon which that judgment is based does not detract from 
the authority of the case as a binding precedent, for, as 
Marshall, C. J., said,^^ "The authority of a decision is co- 
extensive with the facts upon which it is founded. ' ' Mr. 
Justice Brown bases the judgment upon the proposition 
that in the uniformity clause the words 'throughout the 
United States" do not include territories acquired by 
treaty or conquest, except in so far as Congress shall 
direct. Mr. Justice White, Mr. Justice Shiras, and Mr. 
Justice McKenna base it on the theory that while territory 
may be acquired by treaty, and thereby become the prop- 
erty of the United States, it does not become territory of 
the United States subject to constitutional restraints upon 
congressional action until it shall have been "incorpor- 
ated ' ' with the United States by an act of Congress. Mr. 
Justice Gray, concurring in the judgment of affirmance, 
and in substance concurring in the opinion of Mr. Justice 
White, also held that territory acquired by conquest or 
cession does not become domestic territory in the sense of 

^*De Lima v. Bidwell, 182 IT. S. 1; Fourteen Diamond Eings, Pepke, 
Claimant, v. U. S., 183 id. 176. 

^•Ogden V. Saunders, 12 Wheat. 333. 



EXEMPTION OF STATE AGENCIES. 39 

the revenue laws, and that Congress may establish a tem- 
porary government therefor, '* which is not subject to all 
the restrictions of the Constitution." Mr. Chief Justice 
Fuller, Mr. Justice Brewer, and Mr. Justice Peckham dis- 
sented, and held that the powers granted by the Constitu- 
tion and the restrictions upon the exercise of those powers 
extend to every part of the territory of the United States. 
Mr. Justice Harlan concurred in the dissenting opinion of 
the chief justice, and held that ' ' Congress has no existence 
and can exercise no authority outside of the Constitution, ' ' 
and he agreed with the chief justice in his opposition to 
the view that Porto Rico has not been 'incorporated" into 
the United States. 

Exemption of state agencies from taxation by the 
United States. 

21. The United States cannot tax the agencies of a state, 
as, for instance, the salary of a judicial officer of a state,^^ 
nor the revenue of a municipal corporation derived from 
its loan of capital to a railway ; ^^ nor may it tax, in the 
hands of an individual, the income from municipal 
bonds.^^ But the federal government may tax a bequest 
to a municipality for public purposes, although the tax 
incidentally reduces the amount of the bequest to that 
municipality.^* 

Charges which are not taxes exempt from constitutional 
restraints. 

22. The duty on the transportation of passengers by 
sea from foreign countries imposed by the United States 

"^ The Collector v. Day, 11 Wall. 113. 
«^ U. S. V. B. & O. E., 17 Wall. 322. 

^ PoUock V. F. L. & T. Co., 158 U. S. 601. On taxation of state agencies 
in general, see Ambrosini v. 17. S., 187 id. 1. 

** Snyder v. Bettman, 190 U. S. 249. Three justices dissented. 



40 TAXATION. 

in the exercise of tlie power of regulating commerce, not 
being in its nature a tax, is not subject to the constitutional 
restrictions on the exercise of the power of taxation ; ^^ 
and the same view has been taken of the tax imposed by 
the United States on the circulating notes of state banks 
for the purpose of preventing the circulation of any other 
than national bank notes.^^ 

Taxation by the states. 

23. A state may, so far as it is not restrained by the 
Constitution, tax all persons, natural or corporate, and all 
property, real or personal, within its territory and sub- 
ject to its sovereignty, and may regulate, in the exercise 
of legislative discretion, the manner of levying and col- 
lecting its taxes,^^ and the United States cannot, either 
by legislative or judicial action, afford any relief against 

'' The Head Money Cases, 112 U. S. 580. 

"'' Veazie Bank v. Tenno, 8 Wall. 533. See also Twin City Bk. v. Nebeker, 
167 U. S. 196. 

*' Witherspoon v. Duncan, 4 Wall. 210 ; Spencer v. Merchant, 125 U. S. 
345; P. P. C. Co. v. Pennsylvania, 141 id. 18; W. U. T. Co. v. Indiana, 
165 id. 304; A. Ex. Co. v. Ohio, 166 id. 185; Savings Society v. Multnomah 
County, 169 id. 421; Magoun v. I. T. & S. Bank, 170 id. 283; King v. 
MuUins, 171 id. 404; New Orleans v. Stempel, 175 id. 309; Bristol v. Wash- 
ington County, 177 id. 133; Orr v. Gilman, 183 id. 278; P. C. & P. E. v. 
Eeynolds, ibid. 471; League v. Texas, 184 id. 156; Blackstone v. Miller, 188 
id. 189; Board of Assrs. v. C. N. D'E., 191 id. 388; Carstairs v. Cochran, 
193 id. 10. See also opinion of Brown, J., in Eidman v. Martinez, 184 id. 
578. A state may tax an interstate railway, ear, express, or telegraph 
company upon its property within the state, finding the value of the whole 
property, both tangible and intangible, of the corporation, which is used 
in its business, and then computing the value of the line within the state 
by its relative length to the whole: P., C, C. & St. L. Ey. v. Backus, 154 
U, S. 421; C, C, C. & St. L. Ey. v. Backus, ibid. 439; P. P. C. Co. v. Penn- 
sylvania, 141 id. 18; A. E. T. Co. v. Hall, 174 id. 70; U. E. T. Co. v. Lynch, 
177 id. 149; A. Ex. Co. v. Ohio, 165 id. 194, 166 id. 185; A. Ex. Co. v. 
Kentucky, 166 id. 171; W. U. T. Co. v. Massachusetts, 125 id. 530; W. TJ. 
T. Co. V. Taggart, 163 id. 1 ; and see W. U. T. Co. v. Missom-i, 190 id. 412. 
But in estimating the value of the whole property the state may not include 
property in another state which is not used by the company in its business: 
Fargo V. Hart, 193 id. 490. 



TAXATION BY THE STATES. 41 

'^ state taxation, liowever unjust, oppressive, or onerous,'* 
so long as that taxation "does not entrench upon the 
legitimate authority of the Union, or violate any right 
recognized or secured by the Constitution of the United 
States, "ss 

Under the general rule which permits a government 
to tax all persons and property within its jurisdiction, 
the states may impose a succession duty on the devolu- 
tion of title to real estate from their citizens to alien non- 
residents ; '^^ they may tax descents and inheritances, and 
they may classify and vary the rate of taxation with 
reference to lineal and collateral relationship, strangers, 
and the amount of the legacy ; ^^ they may tax goods and 
chattels which are actually within the state when assessed 
for taxation, though owned by a non-resident ; ^^ they may 
tax mortgages of lands within their limits, and notes 
secured by such mortgages, although held by residents of 
other states; ^- they may tax the transfer by will of money 
deposited within the state by a non-resident ; ^^ and, for 

^^ Providence Bk. v. Billings, 4 Pet. 563 ; Carpenter v. Pennsylvania, 17 
How. 456 ; St. Louis v. W. F. Co., 11 Wall. 423 ; The State Tax on Foreign- 
held Bonds, 15 id. 300; Kirtland v. Hotchkiss, 100 U. S. 491, 498; M. G. 
Co. V. Shelby County, 109 id. 398 ; Magoun v. I. T. & S. Bank, 170 id. 283 ; 
Orr V. Gilman, 183 id. 278; Blackstone v. Miller, 188 id. 189. The Four- 
teenth Amendment does not compel the states to adopt an iron rule of 
equal taxation: B. G. E. v. Pennsylvania, 134 U. S. 232; P. Ex. Co. v. 
Seibert, 142 id. 339; Jennings v. C. E. C. Co., 147 id. 147; Giozza v. 
Tiernan, 148 id. 657; Merchants & Manufacturers' Bk. v. Pennsylvania, 
167 id. 461; Magoun v. I. T. & S. Bank, 170 id. 283; Clark v. Titusville, 
184 id. 329; Kidd v. Alabama, 188 id. 730. See also F. C. & P. E. v. 
Eeynolds, 183 id. 471; Connolly v. U. S. P. Co., 184 id. 540; Missouri v. 
Dockery, 191 id. 165. 

'^Mager v. Grima, 8 How. 490. 

^Magoun v. I. T. & S. Bank, 170 U. S. 283. See also Billings v. 
niinois, 188 id. 97. 

"^ Coe V. Errol, 116 U. S. 517. 

^ Savings Society v. Multnomah County, 169 U. S. 421 ; New Orleans v. 
Stempel, 175 id. 309; Bristol v. Washington County, 177 id. 133. See also 
Board of Assessors v. C. N. D'E., 191 id. 388. 

'' Blackstone v. Miller, 188 U. S. 189. 



42 TAXATIOlJr. 

purposes of taxation, the situs of a debt being the resi- 
dence of the creditor, the state may include in the taxable 
property of a resident so much of the registered public 
debt of another state as such resident may hold, although 
the debtor state may either exempt it from taxation or 
actually tax it.^* On the same principle, a state may tax 
her resident citizens for debts due to them by a non- 
resident and secured by his bond and also by his deed of 
trust or mortgage of real estate situated in another state.^^ 
As, until the period of distribution arrives, the law of a 
decedent's domicile attaches to his personal property, that 
property is subject to a state collateral inheritance tax, 
though bequeathed by his will to non-resident legatees.^® 
But the laws of a state can have no extra-territorial effect, 
and, therefore, a state cannot tax a franchise granted by, 
and exercised in, another state,*^^ nor can it, as a means 
of taxing corporate bonds held by non-residents, authorize 
the corporation to retain from the interest due on its 
bonds the amount of the tax.^^ Nor can a state tax, in the 
hands of a non-resident holder, corporate bonds issued 
under a mortgage of a railway formed by the consolida- 
tion of corporations, incorporated by the state, and other 
corporations incorporated by another state, and encum- 
bering by a consolidated and non-severable lien prop- 
erty which is not within the jurisdiction of the taxing 
state.^^ Nor can a state compel a foreign corporation to 
collect its taxes by retaining a portion of the interest due 
upon scrip or bonds held by citizens of the taxing state, 

»* Bonaparte v. Tax Court, 104 U. S. 592. 
«= Kirtland v. Hotehkiss, 100 U. S. 491. 

^ Carpenter v. Pennsylvania, 17 How. 456; U. S. v. Perkins, 163 IT. S. 625. 
»^ L. & J. r. Co. V. Kentucky, 188 F. S. 385. 

** State Tax on Foreign-held Bonds, 15 Wall. 301 ; cf. Savings Society v. 
Multnomah County, 169 U. S. 421, 428. 
^' E. Co. V. Jackson, 7 Wall. 262. 



EXPRESSED RESTEAINTS. 43 

when the payment is made by the foreign corporation in 
its home state.^^^^ A state may tax corporate bonds at 
their face, instead of their market, value.^ 

Expressed restraints upon state taxation. 

24. Section 10 of Article I of the Constitution declares, 
that ''no state shall, without the consent of the Congress, 
lay any imposts or duties on imports or exports, except 
what may be absolutely necessary for executing its inspec- 
tion laws ; and the net produce of all duties and imposts, 
laid by any state on imports or exports, shall be for the 
use of the treasury of the United States; and all such 
laws shall be subject to the revision and control of the 
Congress. No state shall, without the consent of the Con- 
gress, lay any duty of tonnage." The nature and effect 
of the restrictions upon the taxing power of the states 
imposed by these constitutional provisions are more fully 
discussed in Chapter IV, and it is sufficient to say in this 
connection that a state cannot require importers of foreign 
goods by the bale or package and wholesale vendors of 
such goods to pay a license fee ; ^ nor can a state impose an 
ad valorem tax on imiDorted goods remaining in their or- 
iginal cases in the hands of the importer ; ^ nor can a 
state tax an auctioneer's sales of imported goods for ac- 
count of the importers ; ^ but a state may prohibit the ex- 
portation of tobacco grown within its territory, save after 

^•^N. Y., L. E. & W. E. V. Pennsylvania, 153 U. S. 628; D. & H. C. 
Co. V. Pennsylvania, 156 id. 200. 

^ B. G. E. v. Pennsylvania, 134 U. S. 222 ; Jennings v. C. E. C. Co., 
147 id. 147. 

^ Brown v. Maryland, 12 Wheat. 419. Imports, in the constitutional 
sense, embrace only goods brought from a foreign country: A. S. & W. 
Co. V. Speed, 192 U. S. 500. 

*Low V. Austin, 13 Wall. 29; cf. P. & S. C. Co. v. Bates, 156 id. 577. 

* Cook V. Pennsylvania, 97 U. S. 566. 



44 TAXATION. 

inspection and on payment of a tax,^ A state cannot tax 
ships npon their tonnage,*^ 

Implied restraint upon state taxation resulting from 
the federal supremacy. 

25. The supremacy of the United States under the Con- 
stitution impliedly limits to some extent the exercise by 
the states of the power of taxation. Thus, a state cannot 
tax the official salary of an officer of the United States, as, 
for instance, an officer in the revenue marine service ; ^ nor 
can a state tax a telegraph company upon messages sent 
by officers of the United States on public business ; ^ nor 
can a state authorize municipal taxation of the bonds 
issued by the government of the United States for money 
loaned to it; ^ nor can a state tax the notes of the United 
States ; ^^ nor can a state tax so much of the capital of a 
state bank as is invested in the bonds of the United States, 
that capital being assessed either at its actual value,^^ or 
at a valuation equal to the amount paid in, or secured to 
be paid in.^^ But no one will be allowed to evade state 
taxation of his money on deposit by making a temporary 
investment of that money in the notes of the United 
States.^^ A corporation claiming an exemption from 
state taxation by reason of the investment of its surplus 
funds in the legal tender notes of the United States has, 

^ Turner v. Maryland, 107 U. S. 38. 

"State Tonnage Tax Cases, 12 Wall. 204; Steamship Co. v. Portwardens, 
6 id. 31; Peete v. Morgan, 19 id. 581; Cannon v. New Orleans, 20 id. 
577; I. S. S. Co. v. Tinker, 94 U. S. 238. 

^ Dobbins v. Commissioners, 16 Pet. 435. 

* W. U. T. Co. V. Texas, 105 U. S. 460. 

^Weston V. Charleston, 2 Pet. 449; Banks v. Mayor, 7 Wall. 16; cf. 
Plummer v. Coler, 178 U. S. 115. 

'" Bank v. Supervisors, 7 Wall. 26. 

" People V. Commissioners of Taxes, 2 Black, 620. 

i^Bank Tax Case, 2 Wall. 200. 

^' Shotwell V. Moore, 129 IJ. S. 590. 



IMPLIED EESTEAINTS. 45 

of course, the burden of proving the fact on which it rests 
its claim for exemption.^ ^ A state tax of a certain per- 
centage of the total amount of the deposits on a given 
day,^^ or of the average amount of the deposits for a fixed 
period,^ *^ of a saving fund society chartered by the state, a 
state tax of a certain percentage upon the excess of the 
market value of the shares of the capital of a corporation 
chartered by a state over and above the value of its real 
estate and machinery,^ ^ and a state tax, measured by divi- 
dends, upon a foreign corporation doing business within 
the state,^^ are, in each case, a tax on the franchise and 
not on the property of the corporation, and the corpora- 
tion cannot claim exemption from such taxation by reason 
of the investment, in the case of the saving funds, of their 
deposits, and in the case of the other corporations, of their 
capital and assets, in the bonds of the United States. So 
also a state, in taxing the shares of stock of a trust com- 
pany, may include in the valuation of the shares the 
amount of the capital stock of the company which is in- 
vested in the bonds of the United States.^ ^ A state may 
tax a legacy consisting of bonds of the United States issued 
under a statute declaring them to be exempt from taxation 
in any form,^'' and it may tax bequests to the United 
States. ^^ It cannot tax lands held in severalty by mem- 
bers of an Indian tribe and protected by treaties between 
the United States and the tribe,^^ and it cannot tax lands 
held by the United States in trust for members of an 

" C. & B. Co. V. New Orleans, 99 U. S. 97. 

^"Society for Savings v. Coite, 6 Wall. 594. 

16 Provident Inst. v. Massachusetts, 6 Wall. 611. 

" Hamilton Co. v. Masachusetts, 6 Wall. 632. 

" Home Ins. Co. v. New York, 134 U. S. 594. 

" C. T. Co. V. Lander, 184 U. S. 111. 

-opiummer v. Coler, 178 U. S. 115. 

^ U. S. V. Perkins, 163 U. S. 625. 

=2 The Kansas Indians, 5 Wall. 737; The New York Indians, ibid. 761. 



46 TAXATION. 

Indian tribe, or improvements upon such lands, or prop- 
erty given to the Indians by the United States, when such 
taxation is prohibited by federal statute.^^ It may, by 
act of Congress, tax surveyed but unpatented lands of the 
United States included within a railroad land grant.^* 
Lands granted by act of Congress to a state, to be held by 
it to aid in the construction of a railway, though not tax- 
able by the state when held by it as trustee, are taxable by 
it after their conveyance to the railway,^^ and, of course, in 
the case of lands ceded by a state to the United States for 
the construction of a railway, with an express reservation 
of the state 's right of taxation, the state may lawfully exer- 
cise that right,^^ but land within a state, which, under laws 
of Congress for the collection of taxes due to the United 
States, has been sold for non-payment of such taxes, and at 
the sale thereof purchased by the United States and after- 
wards sold by the United States to a third party, or 
redeemed by the owner, is exempt from state taxation 
during the period of federal ownership thereof.^'^ Al- 
though the title to land remain in the United States, ore 
dug therefrom under a mineral claim is, as the personal 
property of the claimant, subject to state taxation.^^ The 
exemption of federal agencies from state taxation is de- 
pendent, not on the fact of the agency, nor on the character 
of the agents, nor on the mode of their appointment, but 
on the effect of state interference in depriving the agent of 
power to serve the government of the United States, or in 
hindering the agent in the efficient exercise of that 

'^ U. S. V. Eickert, 188 U. S. 432. 

='*Aet of 10th July, 1886, 24 Stat, 143, c. 764; C. P. E. v. Nevada, 162 
U. S. 512; N. P. E. v. Myers, 172 id. 589. 
*' Tucker v. Ferguson, 22 Wall. 527. 
^'T. L,. E. V. Lowe, 114 U. S. 525. 
" Van Broeklin v. Tennessee, 117 U. S. 151. 
^ Forbes v. Gracey, 94 U. S. 762. 



IMPLIED BESTRAINTS. 47 

power.^^ A state may, therefore, tax the property, real 
and personal, of a railroad, which has been chartered by 
act of Congress, is subject to a lien securing its debt to the 
United States, and is used as a federal agency for the 
transportation of mails, soldiers, government supplies, 
and munitions of war ; ^^ and, it would seem, on the prin- 
ciple of that case, that a state may tax the property of any 
federal agency, wherever such taxation does not impair 
the efficiency of the agency in the performance of its duty 
to the government of the United States. The federal 
supremacy forbids a state so to tax the transit of passen- 
gers through the state by the ordinary modes of travel, as 
to impede their approach to the seat of government of the 
United States, the ports of entry through which commerce 
is conducted, and the various federal offices in the states.^^ 
The supremacy of the United States does not involve an 
exemption from state taxation of property which has been 
acquired by the exercise of an exclusive privilege granted 
by the United States, when there is no relation of agency 
between the United States and the grantee; thus letters 
patent, granted by the United States, do not exempt from 
state taxation the tangible property in which the invention 
or discovery is embodied.^ ^ Nor does a license granted, 
on payment of a license fee, by the United States under its 
internal revenue statutes to a wholesale liquor dealer in 
a state exempt the dealer, or his business, or his goods 
from state control, regulation, or taxation.^^ 

^U. p. R. V. Peniston, 18 Wall. 5; National Bank v. Commonwealth, 
9 id. 353; Thomson v. P. E., ibid. 579; C. P. E. v. California, 162 
U. S. 91. 

^oU. P. E. V. Peniston, 18 Wall. 5. 

^ Crandall v. Nevada, 6 Wall. 35. 

^ Webber v. Virginia, 103 U. S. 344. 

^'McGuire v. The Commonwealth, 3 Wall. 387; Pervear v. The Cormnon- 
wealth, 5 id. 475. See also Plumley v. Massachusetts, 155 U. S. 461. 



48 TAXATION. 

Taxation of national banks. 

26. A state cannot tax the operations of banks incor- 
porated by the government of the United States as fiscal 
agencies.^ ^ Nor can a state tax the assets of an insolvent 
national bank in the hands of a receiver appointed under 
the provisions of the national banking laws.^^ Of course, 
when Congress licenses state taxation of agencies of the 
government of the United States, such taxation is per- 
missible within the limits imposed by the terms of the 
license ; ^^ thus in the case of national banks, state tax- 
ation is by Section 41 of the Act of 3d June 1864,^'^ per- 
mitted as to the shares in any bank, when ' ' included in the 
valuation of the personal property of the owner or holder 
of such shares, in assessing taxes imposed by authority of 
the state within which the association is located, . . . 
subject only to the restrictions, that the taxation shall not 
be at a greater rate than is assessed upon other moneyed 
capital in the hands of individual citizens of such state, 
and that the shares of any national banking association 
owned by non-residents of any state shall be taxed in the 
city or town where the bank is located, and not elsewhere. " 
The states may, therefore, tax shareholders in national 
banks within the limits of this license,^^ without regard to 
the investment of all or any part of the capital of the banks 
in United States securities. The National Bank Act of 
3d June, 1864,^^ had imposed a further restriction on state 
taxation of national bank shares, declaring that such tax 

^^McCulloch V. The State of Maryland, 4 Wheat. 316; Osborn v. The 
Bank of the U. S., 9 id. 738. 

^' Eosenblatt v. Johnston, 104 U. S. 462. 

^'^ Van Allen v. The Assessors, 3 Wall. 573 ; People v. The Commissioners, 
4 id. 244. See also C. T. Co. v. Lander, 184 U. S. 111. 

^^ 15 Stat. 34, Eev. Stat., sec. 5219. 

^ National Bank v. The Commonwealth, 9 Wall. 353 ; People v. Commis- 
sioners, 4 id. 244; Van Allen v. The Assessors, 3 id. 573. 

^n3 Stat. 111. 



TAXATION OF NATIONAL BANKS. 49 

' ' shall not exceed the rate imposed upon the shares in any 
of the banks organized under the authority of the state, ' ' 
but in the re-enactment of this statute in 1868,**^ and in the 
Eevised Statutes,^^ this condition was omitted. Under the 
Act of 1864 it was held that a state could not tax shares in 
national banks, when it taxed the capital of state banks, 
exempting so much thereof as was invested in the bonds of 
the United States, and failed to tax the shares of state 
banks.^2 It was also held that the limitation upon dis- 
parity of state taxation imposed by the Act of 1864 is not 
overstepped by a state which, having only two banks of 
issue and circulation, and having by contract bound itself 
not to tax these banks beyond a certain limit, but having 
numerous banks of deposit, which do not issue circulation, 
taxes generally and equally all shares of stock in banks 
and incorporated companies doing business in the state.^^ 
The terms of Section 5219 of the Eevised Statutes show 
clearly that Congress did not intend to curtail the taxing 
power of the states over national bank shares as entities 
distinct from the capital of the banks, and as the property 
of persons subject to state jurisdiction, but that it was in- 
tended to guard the national banks against unfriendly 
discrimination by the states in the exercise of that taxing 
power.*^ The phrase ''moneyed capital" includes capital 
employed in national banks and capital employed by in- 
dividuals for the making of profit by its use, but it does 
not include non-competitive capital.^^ The exemption 

^15 Stat. 34. 

« Section 5219. 

^ Van Allen v. The Assessors, 3 Wall. 573 ; Bradley v. The People, 4 id. 
459. 

^'Lionberger v. Eouse, 9 Wall. 468. 

** Adams v. Nashville, 95 U. S. 19; Mercantile Bank v. New York, 121 
id. 138. See the opinion of Miller, J., in Davenport Bank v. Davenport, 
123 id. 83. 

« Mercantile Bank v. New York, 121 U. S. 138; Palmer v. McMahon, 
133 id. 660; National Bank v. Chapman, 173 id. 205. 



50 TAXATION. 

from state taxation of some but not all of the moneyed 
capital in the state is not a discrimination against national 
bank shares within the terms of the license; as, for 
instance, in the case of exemption of "all mortgages, 
judgments, recognizances, and moneys owing upon 
articles of agreement for the sale of real estate ; " *^ 
or of deposits in savings banks, shares in trust companies, 
and shares in other moneyed or stock corporations char- 
tered by the state and deriving an income or profit from 
the use of their capital or otherwise.*"^ Nor is there any 
inequality of taxation or unfriendly discrimination as 
against national bank shares, in the exemption by a state 
of that which it cannot lawfully tax, such as shares owned 
by its residents in the capital stock of foreign corpora- 
tions,** or in the exemption of that which is not a subject 
of taxation by the United States, such as the bonds of a 
municipal corporation created by the state ; *^ but where a 
very material part of the other moneyed capital of a state 
in the hands of individual citizens within the state is ex- 
empted from state taxation, the state cannot tax the shares 
of national banks.^^ State statutes taxing personal prop- 
erty, including national bank shares, and permitting the 
party taxed to deduct his just debts from the valuation of 
his personal property other than national bank shares, tax 
such shares at a greater rate than other moneyed capital, 
and, therefore, are not effective under the terms of the 
license given by Congress ; ^^ but in the case of a national 

«■ Hepburn v. The School Directors, 23 Wall. 480. 

« Mercantile Bank v. New York, 121 U. S. 138; Bank of Eedemption v. 
Boston, 125 id. 60; Palmer v. McMahon, 133 id. 660; First National 
Bank v. Ayers, 160 id. 660; Aberdeen Bank v. Chehalis County, 166 id. 
440; National Bank v. Chapman, 173 id. 205. 

^ Mercantile Bank v. New York, 121 U. S. 138, 162. 

*" Mercantile Bank v. New York, 121 U. S. 138, 162. 

™Boyer v. Boyer, 113 U. S. 689; cf. Commercial Bank -;;. Chambers, 
182 id. 556. 

'^^ People V. Weaver, 100 TJ. S. 539; Supervisors v. Stanley, 105 id. 305; 



TAXATION OF NATIOITAL BANKS. 51 

bank shareholder who has no just debts to deduct, the 
taxing law is valid and operative.^^ A state may, under 
the act of Congress, tax the shares of a bank located within 
its jurisdiction without regard to the non-resident or resi- 
dent ownership of such shares,^^ and the shares may be 
assessed for purpose of state taxation at their market 
value, though that exceed their par value.^^ But state 
taxation of national banl^ shares must be uniform and 
equal, and when a system of valuation for taxation pur- 
poses intended to operate unequally is adopted by the 
state authorities whose duty it is to make the assessment, 
equity may properly interfere, on payment of the proper 
tax, to enjoin the collection of the illegal excess.^^ 
"Where a state has provided a mode for the correction of 
error in the assessment of property for purposes of tax- 
ation, a party aggrieved by an over-valuation of his prop- 
erty cannot maintain an action at law to recover the 
alleged illegal excess of taxes paid by him, for the official 
action of the revising authority is judicial in character, 
and cannot be collaterally impeached,^^ Only the shares 
of stock and the real estate of a bank may be taxed.^^ A 
state may lawfully require a national bank to act as the 
agent of the state in collecting from the shareholders of 
the bank the tax imposed by the state within the limits 

Hills V. Exchange Bank, ibid. 319; Evansville Bank v. Britton, ibid. 322; 
Whitbeck v. Mercantile Bank, 127 id. 193; Palmer v. McMahon, 133 
id. 660. 

=^ Supervisors v. Stanley, 105 U. S. 305. 

°=Tappan v. Merchants' Nat. Bank, 19 Wall. 490. 

^* Hepburn v. The School Directors, 23 Wall. 480 ; People v. Commissioners 
of Taxes, 94 U. S. 415. 

'^'^ Cummings v. National Bank of Toledo, 101 U. S. 153; Pelton v. 
National Bank, 101 id. 143; People v. Weaver, 100 id. 539; Whitbeck v. 
Mercantile Bank, 127 id. 193. 

=« Stanley v. Supervisors, 121 U. S. 535. 

"Owensboro Nat. Bank v. Owensboro, 173 U. S. 664; First Nat. Bank 
of Louisville v. Louisville, 174 id. 438. 



52 TAXATION. 

permitted by the act of Congress.^^ A state may also, 
under a penalty for his non-performance of the duty, re- 
quire a cashier of a national bank to furnish to the state 
authorities a list of the names and respective holdings of 
the shareholders of his bank.^^ 

State taxation as affected by the prohibition of the im- 
pairment of the obligation of contracts. 

27. The constitutional prohibition of the enactment by 
the states of laws impairing the obligation of contracts 
affects to some extent the exercise by the states of the 
power of taxation. While, as a general rule, the states 
may, in the exercise of legislative discretion, either tax 
property or exempt it from taxation, yet contracts 
of exemption from state taxation, not in terms con- 
travening federal ^^ or state ^^ constitutional prohibitions, 
and contained in corporate charters ^^ or stipulated by 
express agreement,^^ if supported by an adequate con- 
sideration, constitute contracts so binding upon the state, 
that their obligation is not to be permitted to be impaired 
by a subsequent legislative repeal of the charter, or by an 
imposition of a rate of taxation inconsistent with the 
state's contract.*^* But there cannot be implied from the 

^ Aberdeen Bank v. Chehalis County, 166 U. S. 440 ; Merchants & 
Manufacturers' Bank v. Pennsylvania, 167 id. 461. 

°» Waite V. Dowley, 94 U. S. 527. 

*° People V. Commissioners of Taxes, 94 IT. S. 415. 

«iE. Cos, V. Gaines, 97 U. S. 697; Trask v. Maguire, 18 Wall. 391; 
Morgan v. Louisiana, 93 U. S. 217; Shields v. Ohio, 95 id. 319; P. I. Co. 
V. Tennessee, 161 id. 193; Stearns v. Minnesota,, 179 id. 223, 241. 

«= Jefferson Branch Bank v. Skelly, 1 Bl. 436 ; M. & O. E. v. Tennessee, 
153 U. S. 486; Citizens' Bk. v. Parker, 192 id. 73. 

«^New Jersey v. Wilson, 7 Cr. 164; New Jersey v. Yard, 95 U, S. 104; 
Wells V. Savannah, 181 id. 531. 

"Jefferson Branch Bank v. Skelly, 1 Bl. 436; W. & R. E. v. Eeid, 13 
Wall. 264; E. & G. E. v. Eeid, iUd. 269; Chicago v. Sheldon, 9 id. 50; 
P. E. V. Maguire, 20 id. 36; University v. People, 99 U. S. 309; Asylum v. 
New Orleans, 105 id. 362; W. & W. E. v. Alsbrook, 146 id. 279; M. & O. 



CONTEACTUAL, EXEMPTION. 53 

grant of a charter an exemption of the corporate franchise 
or property from state taxation,®^ and the imposition in a 
charter of a specific form or rate of taxation is not, in the 
absence of an express contract of exemption from other 
taxation, to be construed as an implied exemption from 
such other taxation, "^^ and contracts of exemption from 
state taxation, when expressly made, are to be strictly con- 
strued.*^^ Immunity from taxation is a personal privilege 
which does not extend beyond the immediate grantee un- 
less it is otherwise so declared in express terms.^^ A 
municipal corporation cannot, by the exercise of a 
statutory power of taxation, diminish the interest payable 
to the holder of a funded obligation of the municipality 
under the terms of the bond.*'^ The subject of exemption 

E. V. Tennessee, 153 id. 486; New Orleans v. Citizens' Bank, 167 id. 371; 
Stearns v. Minnesota, 179 id. 223. 

^Providence Bank v. Billings, 4 Pet. 514; Tucker v. Ferguson, 22 Wall. 
527; M. a. Co. v. Shelby County, 109 U. S. 398. 

•^The Delaware E. Tax, 18 WaU. 206; Erie Ey. v. Penna., 21 id. 492; 
The License Tax Cases, 5 id. 462; Home Ins. Co. v. Augusta, 93 U. S. 116; 
S. C. S. Ey. V. Sioux City, 138 id. 98 ; N. O. C. & L. E. v. New Orleans, 143 
id. 192; W. & W. E. v. Alsbrook, 146 id. 279; Shelby County v. Union 
& Planters' Bank, 161 id. 149; New Orleans v. Citizens' Bank, 167 id. 
371. 

"Tucker v. Ferguson, 22 Wall. 527; W. F. Co. v. East St. Louis, 107 
U. S. 365; Ey. Co. v. Philadelphia, 101 id. 528; Tomlinson v. Branch, 
15 Wall. 460; E. Cos. v. Gaines, 97 U. S. 697; Pieard v. E. T., V. & G. E., 
130 id. 637; Y. & M. V. E. v. Thomas, 132 id. 174; N. O. C. & L. E. v. 
New Orleans, 143 id. 192; W. & W. E. v. Alsbrook, 146 id. 279; W. & St. 
P. L. Co. V. Minnesota, 159 id. 526; P. F. & M. I. Co. v. Tennessee, 161 
id. 174; C. E. & B. Co. v. Wright, 164 id. 327; C. & L. T. E. Co. v. Sand- 
ford, iUd. 578; Ford v. D. & P. L, Co., iUd. 662; Citizens' Savings Bank v. 
Owensboro, 173 id. 636; Wells v. Savannah, 181 id. 531; Orr v. Gilman, 
183 id. 278; Chicago Theological Seminary v. Illinois, 188 id. 662. 

»« Pieard v. E. T., V. & G. E., 130 U. S. 637; People v. Cook, 148 id. 397; 
K. & W. E. V. Missouri, 152 id. 301; St. L. & S. F. Ey. v. Gill, 156 id. 
649; N. & W. E. v. Pendleton, ibid. 667; P. F. & M. I. Co. v. Tennessee, 161 
id. 174: ; Memphis Bank v. Tennessee, ihid. 186; P. I. Co. v. Tennessee, 
iMd. 193 ; C. & L. T. Co. v. Sandf ord, 164 id. 578 ; G. & S. I. E. v. Hewes, 
183 id. 66; N. C. Ey. v. Maryland, 187 id. 258, 

*" Murray v. Charleston, 96 U, S. 432. 



54 TAXATION. 

by contract from state taxation is more fully discussed in 
Chapter V. 

State taxation as affected by the grant to Congress of 
the power of regulating commerce. 

28. The constitutional grant to Congress of the power 
of regulating ' ' commerce with foreign nations, and among 
the several states, and with the Indian tribes ' ' also affects 
to some extent the exercise by the states of the power of 
taxation, but the states are not prohibited from taxing 
either the instrumentalities, or the subjects, of foreign or 
interstate commerce, provided that such taxation be im- 
posed on those instrumentalities and subjects as compo- 
nent parts of the mass of property in the state, or by 
reason of the citizenship of their owners as subjects of the 
sovereignty of the state, and provided also, that that 
which is in form taxation, be not in substance a regula- 
tion of, or a restraint upon, foreign or interstate 
commerce.'^ '^ In accordance with this distinction, a 
state may tax ships and ferry boats as the personal prop- 
erty of their owners, where either the owner, by reason of 
his residence, or the property because of its situs is subject 
to the taxing power of the state ; ^^ and a state may tax 
goods brought from another state and mingled with the 
mass of property in the taxing state,'^^ and goods within 

™ Gibbons v. Ogden, 9 Wheat. 201; The Passenger Cases, 7 How. 479; 
Transportation Co. v. Wheeling, 99 U. S. 280; W. F. Co. v. East St. Louis, 
107 id. 374; California v. C. P. E., 127 id. 1; Brimmer v. Eebman, 138 
id. 78; Massachusetts v. W. U. T. Co., 141 id. 40; P. T. C. Co. v. Adams, 
155 id. 688; P. & S. C. Co. v. Louisiana, 156 id. 590; W. U. T. Co. v. 
Taggart, 163 id. 1; A. Ex. Co. v. Ohio, 165 id. 194, 166 id. 185; New 
York V. Eoberts, 171 id. 658; P., C, C. & St. L. Ey. v. Board of Pub. 
Works, 172 id. 32; K. & H. Bridge Co. v. lUinois, 175 id. 626; U. E. T. 
Co. V. Lynch, 177 id. 149. 

"W. F. Co. V. East St. Louis, 107 U. S. 365; T. Co. v. Wheeling, 99 
id. 273. 

''Woodruff V. Parham, 8 Wall. 123; Brown v. Houston, 114 U. S. 622; 



TAXATION OF COMMEECE. 55 

the state intended for transportation to another state but 
not actually stated on their voyage ; ^^ provided, that the 
taxation is not so imposed as to discriminate against either 
the natural products of, or goods manufactured in, an- 
other state.'* A state may require a foreign corporation 
which is engaged in interstate commerce to pay for the 
privilege of exercising the franchises of a corporation,'^^ 
though not for the right of transporting interstate passen- 
gers,'^ within its borders. It may tax its own citizens for 
the prosecution of any particular business or profession 
within the state, unless that business be directly concerned 
with interstate commerce ; thus, while a state may not tax 
drummers of goods made in other states,^'^ it may tax per- 
sons who sell goods shipped to them from outside points,^® 
and it may tax exchange brokers, despite the fact that bills 
of exchange are instruments of foreign and interstate 
commerce.'^ It may tax agents engaged in hiring labour- 

P. & S. C. Co. V. Bates, 156 id. 577; A. S. & W. Co. v. Speed, 192 id. 
500; cf. Kelley v. Ehoads, 188 id. 1. 

'" Coe V. Errol, 116 U. S. 517 ; D. M. Co, v. Ontonagon, 188 id. 82. 

'"Ward V. Maryland, 12 Wall. 418; Walton v. Missouri, 91 IT. S. 275; 
Guy V. Baltimore, 100 id. 434; Webber v. Virginia, 103 id. 344; Walling v. 
Michigan, 116 id. 446; Bobbins v. Shelby Co., 120 id. 489; Corson v. 
Maryland, ihid. 502; Asher v. Texas, 128 id. 129; Brennan v. Titusville, 
153 id. 289; Stoekard v. Morgan, 185 id. 27; Caldwell v. North Carolina, 
187 id. 622; N. & W. Ey. v. Sims, 191 id. 441. But see Hinson v. Lott, 
8 Wall. 148; Downham v. Alexandria Council, 10 id. 178; Machine Co. 
V. Gage, 100 IT. S. 676; Tiernan v. Einker, 102 id. 123; Ficklen v. Shelby 
County, 145 id. 1; Emert v. Missouri, 156 id. 296; Eash v. Farley, 159 
id. 263; A. S. & W. Co. v. Speed, 192 id. 500. 

^■^ Maine v. G. T. Ey., 142 U. S. 217. Bradley, Harlan, Lamar, and 
Brown, JJ., dissented. See also Cruteher v. Kentucky, 141 id. 47; Ashley 
V. Eyan, 153 id. 436; N. Y., L. E. & W. E. v. Pennsylvania, 158 id. 431; 
New York v. Eoberts, 171 id. 658. 

" Allen V. P. P. C. Co., 191 U. S. 171. 

" Eobbins v. Shelby County, 120 U. S. 489 ; Asher v. Texas, 128 id. 129 ; 
Brennan v. Titusville, 153 id. 289; Stoekard v. Morgan, 185 id. 27; Cald- 
well V. North Carolina, 187 id. 622. 

'« Machine Co. v. Gage, 100 U. S. 676; Emert v. Missouri, 156 id. 296; 
Eash V. Farley, 159 id. 263; A. S. & W. Co. v. Speed, 192 id. 500. 

'" Nathan v. Louisiana, 8 How. 73. 



56 TAXATION. 

ers to be employed beyond the limits of the state, even 
though transportation must eventually take place as the 
result of such contracts ; ^^ but an agent employed solely 
in promoting the use of his line in interstate transporta- 
tion cannot be taxed, for the business is directly connected 
with commerce and consists wholly in carrying it on.^^ It 
has the right to impose a license tax,^^ or a tax on re- 
ceipts,^^ upon a company engaged in local commerce, 
although the company be also engaged in interstate busi- 
ness ; ^* but it cannot impose such charges upon strictly in- 
terstate commerce.^^ It may, however, tax so much of the 
gross receipts of an interstate railroad company as are 
earned within the state.^^ If property within a state and 
otherwise liable to taxation be in money at the date of as- 
sessment for taxation, a subsequent investment thereof in a 
subject of commerce does not relieve that capital from lia- 
bility to state taxation.*^ "While a state cannot tax the 
interstate transportation of passengers or goods, it may by 
its charter of a railway charge a toll payable to the state 
for the use of the improved facilities of travel furnished by 
the railway,*^ and it may tax its railway companies upon 
the cash value of their capital stock.^® It may tax an inter- 

'"WiUiams v. Fears, 179 U. S. 270, 

«'McCall V. California, 136 IJ. S. 104. See also N. & W. E. v. Penn- 
sylvania, ihid. 114; Crutcher v. Kentucky, 141 id. 47. 

«'P. T. C. Co. V. Charleston, 153 U. S, 692; Osborne v. Florida, 164 id. 
650; P. Co. V. Adams, 189 id. 420; Allen v. P. P. C. Co., 191 id. 171. 

8^Eatterman v. W. U. T. Co., 127 U. S. 411; W. U. T. Co. v. Alabama, 
132 id. 472; P. Ex. Co. v. Seibert, 142 id. 339. 

**A company which carries to or from a ferry passengers intending to 
go to another state, and which makes a separate charge for such service, is 
not engaged in interstate commerce, and a license tax upon such company 
is constitutional : New York v. Knight, 192 U. S. 21. 

^Leloup V. Port of Mobile, 127 U. S. 640; Crutcher v. Kentucky, 141 
id. 47. 

«« Maine v. G. T. Ey., 142 U. S. 217. 

" People V. Commissioners, 104 U. S. 466. 

»« B. & O. E. V. Maryland, 21 Wall. 456. 

»" The Delaware E. Tax, 18 Wall. 206. 



TAXATION OF COMMERCE. 57 

state railway, car, express, or telegraph company upon its 
property within the state, finding the value of the whole 
property, both tangible and intangible, of the corporation, 
which is used in its business, and then computing the value 
of the line within the state by its relative length to the 
whole.^^ On the other hand, a state may not tax sheep 
which are driven at reasonable speed across its territory, 
although they are allowed to graze on the way.^^ It may 
not tax ships and ferryboats which come within the juris- 
diction in the prosecution of foreign or interstate com- 
merce, unless the owner is by residence subject to the 
taxing power of the state.^^ Nor can a state tax the trans- 
portation of passengers coming by water into its ports 
from a foreign country or from another state ; ^^ nor can 
a state tax the interstate transportation of goods by 
water ; ^^ nor can a state impose port dues, that is, charges 
payable by all vessels, entering, remaining in, or leaving a 
port, without regard to services rendered to, or received 
by, the vessel ; ^^ nor can a state tax a telegraph company 
upon messages transmitted by it to points outside of the 

" p., C, C. & St. L. E7. V. Backus, 154 U. S. 421 ; C, C, C. & St. L-. Ey. 
V. Backus, ibid. 439 ; P. P. C. Co. v. Pennsylvania, 141 id. 18 ; A. E. T. Co. 
V. Hall, 174 id. 70 ; U. E. T. Co. v. Lynch, 177 id. 149 ; A. Ex. Co. v. Ohio, 
165 id. 194, 166 id. 185; A. Ex. Co. v. Kentucky, 166 id. 171; W. U. T. 
Co. V. Massachusetts, 125 id. 530; W. U. T. Co. 1;. Taggart, 163 id. 1; 
W. U. T. Co. V. Missouri, 190 id. 412. But in estimating the value of the 
whole property the state may not include property in another state which 
is not used by the company in its business: Fargo v. Hart, 193 id. 490. 

^KeUey v. Ehoads, 188 U. S. 1. 

•"Hays V. P. M. S. S. Co., 17 How. 596; St. Louis v. W. P. Co., 11 
Wall. 423; Morgan v. Parham, 16 id. 471; Moran v. New Orleans, 112 
17. S. 69; G. P. Co. v. Pennsylvania, 114 id. 196; P. & S. S. S. Co. v. 
Pennsylvania, 122 id. 326. 

" The Passenger Cases, 7 How. 283 ; Henderson v. The Mayor, 92 U. S. 
259; Chy Lung v. Freeman, iUd. 275; People v. C. G. T., 107 id. 59; P. 
& S. S. S. Co. V. Pennsylvania, 122 id. 326, overruling the case of the 
State Tax on Eailway Gross Eeceipts, 15 Wall. 284. 

**Almy V. California, 24 How. 169. 

** Steamship Co. v. Portwardens, 6 Wall. 31. 



58 TAXATION. 

state ; ^^ nor can a state tax the interstate transportation 
of passengers or goods. It, therefore, cannot tax inter- 
state freight by the pound ; ^^ nor can it tax the total num- 
ber of sleeping cars brought into the state by a foreign 
corporation ; ^^ nor can it tax the entire gross receipts of 
corporations engaged in the business of running cars not 
their own property over a railway line within the state.^^ 

•» W. U. T. Co. V. Texas, 105 U. S. 460. 

" The State Freight Tax, 15 Wall. 232 ; E. Ey. v. Pennsylvania, ibid. 282, 
note. 

*«Pickard v. P. S. C. Co., 117 U. S. 34; Tennessee v. P. S. C. Co., ibid. 51; 
Allen V. P. P. C. Co., 191 id. 171. 

^ Fargo V. Michigan, 121 U. S. 230. 



CHAPTER IV. 

THE EEGULATION OF COMMEECE. 

29. The constitutional provisions. 

30. The historical reason for the provisions. 

31. Conmierce defined. 

32. Eegulation of commerce defined. 

33. The general principles defining the limits of national and state regu- 

lation. 

34. The internal commerce of a state. 

35. Navigable waters and the soil imder them. 

36. Preferences of ports. 

37. Duties upon exports. 

38. Duties upon tonnage. 

39. Port dues. 

40. Pilotage. 

41. Eegulation of navigation. 

42. Port regulations. 

43. Quarantine. 

44. Ferries. 

45. Bridges and dams. 

46. Improvements of navigation. 

47. Wharves and piers. 

48. State duties upon imports and exports. 

49. State inspection laws. 

50. Taxation discriminating against goods from other states. 

51. The original package doctrine. 

52. Transportation: (a) State regulation in the exercise of the police 

power; (b) Eegulation by taxation; (c) The Interstate Commerce 
Act. 

53. The Anti-trust law. 

54. Telegraphs. 

55. Commerce with the Indian tribes. 

The constitutional provisions. ' 

29. The Constitution of the United States contains 
three clauses which directly bear upon the regulation of 
commerce. Section 8 of Article I declares that ''the Con- 
gress shall have power ... to regulate commerce with 
foreign nations, and among the several states, and with 
the Indian tribes. ' ' Section 9 of the same article enum- 

59 



60 THE REGULATIOlSr OF COMMERCE. 

erates among the exceptions from the powers granted to 
the United States, that "no tax or duty shall be laid on 
articles exported from any state. No preference shall be 
given by any regulation of commerce or revenue to the 
ports of one state over those of another : nor shall vessels 
bound to, or from, one state, be obliged to enter, clear, or 
pay duties in another." Section 10 of the same article, 
in its enumeration of the expressed restrictions upon the 
powers of the states, declares that "no state shall, without 
the consent of the Congress, lay any imposts or duties on 
imports or exports, except what may be absolutely neces- 
sary for executing its inspection laws : and the net produce 
of all duties and imposts, laid by any state on imports or 
exports, shall be for the use of the treasury of the United 
States ; and all such laws shall be subject to the revision 
and control of the Congress. No state shall, without the 
consent of Congress, lay any duty of tonnage." The 
constitutional provisions are, in effect, first, a grant to 
Congress of the power of regulating foreign and interstate 
commerce, with the expressed restriction that the United 
States shall not lay any tax or duty on articles exported 
from any state, nor give preference by any regulation to 
the ports of one state over those of another, nor oblige 
vessels bound to or from one state to enter, clear, or pay 
duties in another ; second, an implied restraint upon state 
regulation of foreign or interstate commerce; and third, 
an expressed prohibition of state duties on imports, ex- 
ports, or tonnage, save under certain defined restrictions, 
the most material of which is the consent of Congress. 
These constitutional provisions are not only in full force 
and vigour to-day, but their application is wider and more 
far-reaching than the framers of the Constitution im- 
agined to be within the bounds of possibility. The only 
commerce that they knew was the foreign and coastwise 



EEASON FOR PROVISION. 61 

commerce that was carried in ships. They little thought 
that the time would ever come when the commerce so 
carried would be far exceeded in amount and in value by 
the internal commerce of the country, yet that time has 
come. In the one hundred and seventeen years that have 
passed since the adoption of the Constitution, the country 
has made great strides. Less than three millions of people 
have grown to be more than seventy millions in number. 
Discoveries in science and inventions in the arts have 
developed new subjects of trade, and have created new 
agencies of commerce. Steam and electricity have been 
made to do man's bidding. Sailing vessels have given 
way to steamships, and railways have superseded turnpike 
roads, Conestoga wagons and canals for the movement 
of intraterritorial freight. Telegraphs and telephones 
have annihilated distance. The growth of population, the 
creation of new subjects of trade, and the improvements 
in the movement of traffic have necessarily resulted in a 
vast enlargement in the volume of commerce. In view 
of these great changes in the conditions of the problem, 
it is more than ever important that the constitutional 
limits upon the regulation of commerce should be clearly 
comprehended, and that the line which separates the 
provinces of federal and of state authority over this 
subject of national interest should be, so far as is possible, 
accurately defined. 

The historical reason for the provisions. 

30. It is an historical fact that the Constitution was 
framed and adopted mainly because all of the states had 
suffered under the Confederation by reason of the selfish 
commercial policy of England in closing her markets to 
goods of American manufacture, and because some of the 
states had also suffered by reason of the no less selfish 
commercial policy of other states in the imposition of 



62 THE REGULATION OF COMMERCE. 

heavy duties on imported goods, and in the enforcement 
of vexatious restrictions upon trade. There were great 
differences of opinion as to other features of the Constitu- 
tion, yet, in the convention of 1787 and among the people, 
there was practical unanimity as to the expediency of vest- 
ing in the government of the United States the power of 
so regulating commerce as to overcome the disintegrating 
forces which threatened the loss of all that had been gained 
by the success of the Revolution.^ But if the f ramers of 
the Constitution had ever imagined that the power of 
regulating commerce would be expanded as it has been by 
judicial construction, no such power would have been 
vested in Congress. 

Commerce defined. 

31. The term " commerce, " as Marshall, C. J., construed 
it,^ means not only traffic, but also commercial intercourse 
in all its branches, including transportation by sea and 
on land, importation and exportation, and all that is 
necessarily incident thereto. As the Constitution is a 
frame of government intended to endure for all time, it 
follows that the term "commerce" must receive a con- 
struction sufficiently elastic to comprehend not only the 
subjects and instrumentalities of commerce known and 
used when the Constitution was framed, but also all 
present and future subjects of commerce and agencies of 
commercial intercourse.^ Yet everything that is con- 
nected with commerce is not necessarily commerce. Bills 
of exchange may be given in payment for goods to be im- 
ported, and yet such bills are mere personal obligations, 

* Gibbons v. Ogden, 9 Wheat. 1 ; Brown v. Maryland, 12 id. 445 ; Cook 
V. Pennsylvania, 97 TJ. S. 566; County of Mobile v. KimbaU, 102 id. 691. 
'^ Gibbons v. Ogden, 9 Wheat. 1. 
" P. T. Co. V. W. U. T. Co., 96 U. S. 1. 



COMMERCE DEFINED. 63 

and are not in themselves subjects of commerce.* Money 
assessed for state taxation is not by a subsequent invest- 
ment in a subject of commerce relieved from such tax- 
ation.^ So, also, a contract of insurance is not ' ' an instru- 
mentality of commerce, but a mere incident of commercial 
intercourse. " ® A state may, therefore, prohibit foreign 
insurance companies and their agents from effecting 
within its territory contracts of insurance, marine, or 
otherwise, save upon such conditions as the state may 
prescribe ; "^ but a state cannot prohibit its citizens from 
effecting in another state a contract of insurance.^ Acts of 
Congress ^ having authorized the registration in the 
patent oflSce of devices in the nature of trade-marks, made 
the wrongful use thereof a cause of action for damages, 
and punished by fine and imprisonment the fraudulent 
use, sale, and counterfeiting thereof, it was held ^^ that the 
statutes in question were unconstitutional because not 
limited in terms, or by the essential nature of their subject- 
matter, to the regulation of trade-marks in their relation 
to foreign and interstate commerce. A subsequent 
statute ^^ has provided for the registration and protection 
of trade-marks used in foreign and interstate commerce, 
and is not open to the objection which invalidated the prior 
statutes. On the other hand, bills of lading of goods sold 

*Bank of Augusta v. Earle, 13 Pet. 519, 531; Sturges v. Crowninshield, 
4 Wheat. 147; Nathan v. Louisiana, 8 How. 73. 

* People V. Commissioners, 104 U. S. 466. 

*Per Gray, J., Nutting v. Massachusetts, 183 U. S. 556. 

' Paul V. Virginia, 8 Wall. 168 ; Ducat v. Chicago, 10 id. 410 ; L. I. Co. 
V. Massachusetts, ibid. 566; P. F. A. v. New York, 119 id. 110; Hooper 
V. California, 155 id. 648; N. Y. L. I. Co. v. Cravens, 178 id. 389; Nutting 
V. Massachusetts, 183 id. 553. 

* AUgeyer v. Louisiana, 165 U. S. 578. 

»14th August, 1876, 19 Stat. 141; 8th July, 1870, Eev. Stat., sees. 
4937 to 4947. 

" The Trade Mark Cases, 100 U. S. 82. 

" Act of 3d March, 1881, 21 Stat. 502, c. 138. See also Eyder v. Holt, 
128 U. S. 525; Warner v. S. & H. Co., 191 id. 195. 



64 THE EEGULATION OF COMMERCE. 

and transported in the course of interstate commerce are, 
by reason of their representative character, entitled to 
protection as commerce,^ ^ and the transmission of ideas by 
telegraph is commerce, for the reason that in the develop- 
ment of modern business methods the telegraph has 
become indispensable as a means of intercommunication in 
commercial intercourse.^^ Would not the same reasoning 
apply, in the case of goods admittedly subjects of com- 
merce, to the trade-marks on such goods, the bills of ex- 
exchange drawn for the price of the goods, and the policies 
of insurance against the loss of the goods by fire or by the 
perils of navigation? Insurance, commercial paper, and 
trade-marks are certainly as nearly related to, and as truly 
incidents of, commerce, as a telegraphic inquiry as to the 
state of the market, or a telegraphic order for the for- 
warding of the goods, though, unlike the bill of lading, 
they do not represent the goods. Lottery tickets are sub- 
jects of traffic, and the carriage of such tickets by independ- 
ent carriers from one state to another is interstate com- 
merces^ The transfer of shares of railway companies is 
interstate commerce when such shares are transferred for 
the purpose of vesting in a holding company a majority of 
the shares of two competing railways engaged in inter- 
state traffics'^ 

Regulation of commerce defined. 

32, To regulate commerce is "to prescribe the rule by 
which commerce is to be governed." ^^ The power to 

"^ ^^Almy V. California, 24 How. 169; as explained by Miller, J., in Wood- 
ruff V. Parham, 8 Wall. 138. A tax on foreign bills of lading is a tax 
on exports: Fairbank v. U. S., 181 U. S. 283. 

« P. T. Co. V. W. U. T. Co., 96 U. S. 1, 9 ; Tel. Co. v. Texas, 105 id. 460, 
464; W. U. T. Co. v. James, 162 id. 650. 

"Lottery Case, 188 U. S. 321, 363. Fuller, C. J., and Brewer, Shiras, 
and Peckham, JJ., dissented. 

'' N. S. Co. V. U. S., 193 U. S. 197. 

" Per Marshall, C. J., Gibbons v. Ogden, 9 Wheat. 1, 196. 



COMMERCE DEFINED. 65 

regulate is unrestrained, and it may, therefore, either 
control or prohibit. Commerce may be directly regu- 
lated by legislation enacted in the exercise of the 
police power and prescribing the manner in which 
the operations of commerce are to be conducted, or it may 
be indirectly regulated by the imposition of taxation upon 
its instrumentalities or subjects.^'^ Taxation has been de- 
fined ^^ as the compulsory exaction by a government, in the 
exercise of its sovereignty, of a payment of money or sur- 
render of property by any person, natural or corporate, 
who, or whose property so taxed, is subject to the sov- 
ereign power of that government.^® The police power 
may be defined to be that function of government by the 
exercise of which all persons who are subject to the sov- 
ereignty of the government exercising the power are, for 
reasons of public policy, restrained in their use or enjoy- 
ment of some right of person or of property .^^ The police 
power may attain its end by absolutely prohibiting the 
exercise of a particular right or by so regulating the 
exercise of that right as to permit its use under conditions, 
and, if the power exist, the extent to which it may be 
exercised in any case is limited only by the legislation of 
the government in which the power may be vested, unless 
further restraint be imposed by the Constitution of the 
United States or by the constitution of the state. Congress 
cannot, in the exercise of the power to regulate, tax com- 

" p. & S. S. S. Co. V. Pensylvania, 122 U. S. 336, per Bradley, J. ' ' Tax- 
ing is one of the forms of regulation. It is one of the principal forms." 

^' Supra, sec. 14. 

" McCulloch V. Maryland, 4 Wheat. 420 ; The State Freight Tax, 15 Wall. 
277. 

^" Taney, C. J., said, in the License Cases, 5 How. 504, 583, that the 
police powers "are nothing more nor less than the powers of government 
inherent in every sovereignty to the extent of its dominions." Harlan, J., 
said, in Patterson v. Kentucky, 97 U. S. 501: "The police powers extend 
at least to the protection of the lives, the health, and the property of the 
community against the injurious exercise by the citizen of his own rights." 



Q6 THE KEGULATION OF COMMEEOE. 

merce ; ^^ and while the states cannot regulate foreign or 
interstate commerce, they are not prohibited from taxing 
either its instrumentalities or subjects, provided that tax- 
ation be imposed thereon as component parts of the mass 
of property in the state, and provided also that that which 
is in form taxation be not in substance a restriction upon, 
or a prohibition of, foreign or interstate commerce. The 
essential difference between taxation of property, and 
regulation of commerce in the guise of taxation, is il- 
lustrated by every case in which the court has had to 
determine whether any particular tax imposed under state 
authority on an instrumentality or subject of foreign or 
interstate commerce be, or be not, forbidden by the Con- 
stitution.^^ In the exercise of its power over commerce, 
Congress has, in statutes too numerous to mention, im- 
posed duties on imports and even prohibited importations 
of certain goods ^^ and regulated, among other things, the 
registration and recording of the titles of ships,^^ the clear- 
ance and entry of ships and steamers,^^ the tonnage duties 
payable to the United States by vessels,^^ navigation, in- 
cluding sailing rules, and the life-saving service,^^ the 
transportation of passengers and merchandise by sea,^^ 
the shipping of sailors,^^ and their pay and discharge,^^ 

2^ Gibbons v. Ogden, 9 Wheat. 201; The Passenger Cases, 7 How. 402, 479. 

"See particularly T. Co. v. Wheeling, 99 U. S. 280; W. F. Co. v. St. 
Louis, 107 id. 374; C. & C. B. Co. v. Kentucky, 154 id. 204, 212. 

=«Buttfield V. Stranahan, 192 U. S. 470. 

=*29 Stat. 188 c. 255. 

==Eev. Stat. 4197 et seq. 

''"Eev. Stat. 4219; 24 Stat. 79, c. 421. 

" Eev. Stat. 4233 ; 26 Stat. 320, c. 802 ; 26 Stat. 425, c. 875 ; 27 Stat. 557, 
c. 202; 28 Stat. 82, c. 83; 28 Stat. 281, c. 284; 28 Stat. 645, c. 64; 28 
Stat. 672, c. 102; 29 Stat. 381, c. 401; 29 Stat. 689, c. 389; 30 Stat. 96, 
c. 4. 

=«Eev. Stat. 4252, 4463; 22 Stat. 186, c. 374; 27 Stat. 445, c. 105; 29 
Stat. 122, c. 199; 31 Stat. 799, c. 386. 

^'Eev. Stat. 4501, 4509; 28 Stat. 667, c. 97; 29 Stat. 691, c. 389; 30 
Stat. 775, c. 28. 

^"Eev. Stat. 4549; 30 Stat. 755, c. 28. 



COMMEKCE DEFINED. 67 

the lighthouse service,^^ the coast survey,^^ the 
building and use of bridges,^^ the improvement 
of rivers and harbours,^* and telegraphs.^^ It has 
authorized the transportation of government supplies, and 
mails, and troops by railway, and the connection of rail- 
ways of different states so as to form a continuous line ; ^^ 
it has permitted the states to regulate the storage and sale 
of original packages of intoxicating liquors ; ^'^ it has 
regulated the interstate transportation of live stock ; ^^ it 
has provided for arbitration between interstate railroad 
. companies and their employees ; ^^ it has required the use 
of automatic couplers on interstate trains ; ^^ it has, by the 
Interstate Commerce Act and its amendments,*^ regu- 
lated the interstate transportation of passengers and 
freight by railways and constituted a commission to carry 
the statute into effect ; and it has prohibited the making of 
contracts in restraint of interstate commerce.*^ The 
states have facilitated foreign and interstate commerce 
by the improvement of navigation, the construction 
of railways, wharves, and bridges, and they have inci- 
dentally affected it by the enactment of pilotage, quar- 

^^Eev. Stat. 4653. 

^^Eev. Stat. 4681. 

^ 27 Stat. 110, c. 158 ; 28 Stat. 362, c. 299 ; 30 Stat. 1151, e. 425. 

^Eev. Stat. 5244; 26 Stat. 426, 453, 454, c. 907; 27 Stat. 110, e. 158; 
30 Stat. 1151 c. 425. 

=^Eev. Stat. 5623; 25 Stat. 382, c. 772. 

="'Eev. Stat. 5285; 25 Stat. 382, e. 772. 

" 26 Stat. 313, e. 728, 

^Eev. Stat. 4386 et seq.; 23 Stat. 31, 32, c. 60. 

5»30 Stat. 424, c. 370. 

'•'27 Stat. 531, c. 196. 

*^24 Stat. 379, c. 104; 25 Stat. 855, e. 382; 26 Stat. 743, c. 128; 27 
Stat. 443. 

^26 Stat. 209, c. 647. See also U. S. v. T. M. F. A., 166 U. S. 290; 
U. S. V. J. T. A., 171 id. 505; U. S. v. IE. C. Knight Co., 156 id. 1; 
Hopkins v. U. S., 171 id. 578; A. P. & S. Co. v. U. S., 175 id. 211; N. S. 
Co. V. U. S., 193 id. 197. 



68 THE EEGULATION OF COMMEKCE. 

antine, and police laws. The states have also regulated 
their internal commerce by taxation and by police 
legislation. 

The general principles defining the limits of national and 
state regulation. 

33. Foreign commerce is, obviously, that which is 
carried on between a foreign port, or a point in a foreign 
country, and a port of, or a point in, the United States ; 
interstate commerce is that which is carried on between 
ports, or points, in different states; and certainly that 
commerce which begins, moves, and ends, exclusively with- 
in a state must be regarded as internal commerce and as 
such subject to state taxation and regulation. Where com- 
merce begins within a state, passes beyond the territory 
of that state and through part of another state, and ends 
in the state of its origin, it is regarded as sufficiently in- 
ternal commerce to be subject to taxation in the state of 
its origin and destination ''in respect of receipts for the 
proportion of the transportation within the state. " *^ On 
the other hand, transportation under such conditions is 
subject only to the regulation of the United States and not 
to the regulation of the state.*^ It has also been held that 
navigation on the high seas between ports of the same state 
is subject to regulation by the United States.*^ A com- 
modity is not to be regarded as a subject of foreign or 
interstate commerce until it has begun to move in trade 
from one country or state to another,*^ for, until the 
commodity is actually shipped or started, ' ' its exportation 
is a matter altogether in fieri, and not at all a fixed and 

^L. V. E. V. Penna.,145 U. S. 192. 
**Hanley v. K. C. S. Ey., 187 U. S. 617. 
«Lord V. S. S. Co., 102 U. S. 541. 
« The Daniel Ball, 10 Wall. 557. 



LIMITS OF NATIONAL AND STATE REGULATION. 69 

certain thing." ^' The general distinction as to the re- 
spective powers of the United States and the states over 
commerce was clearly put by Marshall, C. J.,^^ when he 
said, ' ' The genius and character of the whole government 
seems to be that its action is to be applied to all the ex- 
ternal concerns of the nation, and to those internal 
concerns which affect the states generally, but not to those 
which are completely within a particular state, which do 
not affect other states, and with which it is not necessary to 
interfere for the purpose of executing some of the general 
powers of the government." Therefore, the internal 
commerce of a state is exclusively a subject of regulation 
by that state; and foreign and interstate commerce are 
subjects of regulation by Congress. But, as Curtis, J., 
said, the power to regulate foreign a,nd interstate '* com- 
merce embraces a vast field, containing not only many, 
but exceedingly various, subjects, quite unlike in their 
nature; some imperatively demanding a single uniform 
rule, operating equally on the commerce of the United 
States in every port, and some ... as imperatively de- 
manding that diversity which alone can meet the local 
necessities. ' ' ^^ Therefore, where the subject is national 
in its character and demands uniformity of regulation. 
Congress alone can legislate, and, when Congress has not 
legislated, it necessarily follows that that subject is to be 
free from all legislation whatever. The so-called ' ' doctrine 
of the silence of Congress ' ' means this, and nothing more 
than this.^° On the other hand, where the subject is not 

*^Coe V. Errol, 116 IT. S. 528; per Bradley, J. 

"^ Gibbons v. Ogden, 9 Wheat. 294. 

'" Cooley V. Board of Wardens, 12 How. 299, 314. 

^^Welton V. Missouri, 91 U. S. 275; County of Mobile v. Kimball, 102 
id. 691; Brown v. Houston, 114 id. 681; Bobbins v. Shelby County Taxing 
District, 120 id. 493; Bowman v. C. & N. W. Ey., 125 id. 465, 508; Leisy 
V. Hardin, 135 id. 100. Compare the ingenious argument of Dr. Wm. 



70 THE EEGULATION OF COMMEECE. 

national in its character, and where local necessities re- 
quire diversity of regulation, the states may legislate, and 
their legislation will be controlling and effective until, and 
only until, congressional legislation shall supersede the 
state legislation.^^ 

The internal commerce of a state. 

34. As Chase, C. J., said,^^ referring to the internal 
commerce of a state, "Over this commerce and trade 
Congress has no power of regulation nor any direct con- 
trol. This power belongs exclusively to the states. ' ' The 
United States, therefore, may not prohibit the sale within 
the territory of a state of illuminating oil inflammable at 
less than a specified temperature ; ^^ nor license the sale of 
liquor in violation of the laws of the state ; ^* nor does a li- 
cense granted by the United States exempt the licensee 
from state taxation on the business so conducted ; ^^ nor do 
letters patent granted for an invention confer upon the 
patentee the right of selling the patented article in viola- 
tion of the laws of the state.^^ The cases which illustrate 
the power of the state over its internal commerce are 
hereinafter referred to, and the rule deducible from them 
is that, while each state did not, by the adoption of the 
Constitution, surrender its ordinary local powers of self- 
government operative upon all persons and property 
which exist, or may come, within its territory, and which 
merge in the mass of persons and property subject to its 

Draper Lewis, in Chapter VI of his "Federal Power over Commerce and 
its Effect on State Action." 

^^C. & C. B. Co. V. Kentucky, 154 U. S. 204. See particularly the 
judgment of Brown, J., pp. 209 to 213, where there is a full discussion 
of this subject, and an exhaustive classification of the cases. 

'^License Tax Cases, 5 Wall. 462, 470. 

'^V. S. V. Dewitt, 9 Wall. 41; cf. Felsenheld v. U. S., 186 U. S. 126. 

^ McGuire -;;. The Commonwealth, 3 Wall. 387. 

^^Pervear v. The Commonwealth, 5 Wall. 475. 

''^ Patterson v. Kentucky, 97 U. S. 501. 



NAVIGABLE WATEES AND SOIL UNDER THEM. 71 

jurisdiction, yet, nevertlieless, the territorial limits of each 
state's jurisdiction, the grant to the government of the 
United States of powers conflicting with state sovereignty, 
and a due regard to the rights of citizens of other states, 
must be held to limit the exercise by each state of its other- 
wise illimitable powers, by the restriction that those 
powers are not to be so exercised as to interfere with the 
full execution of the powers granted to the United States. 
Therefore, persons or property brought within the terri- 
tory of a state by the exercise of any federal power, must 
be exempted from obstructive state control until the 
federal power has ceased to operate, and until the persons 
or property on which it acted have merged in the mass of 
persons or property within the territory of the state.^'^ On 
the same principle, federal agencies are exempted from 
any such state regulation as hinders the agent in the full 
performance of his or its duty to the government of the 
United States. 

Navigable waters and the soil under them. 

35. Before the Revolution, the title to navigable waters 
and to the soil under them was vested in the crown, or in 
its grantees. After the Revolution, the people became 
sovereign, and thenceforth the title to navigable waters 
within the jurisdiction of a riparian state and to the soil 
under them became vested in that state for the public use 
of its citizens,^^ After the adoption of the Constitution, 

"A herd of sheep, driven at a reasonable rate of speed from a point in 
one state a distance of many hundred miles across the territory of a second 
state to a point in a third state and fed by grazing en route, is property 
engaged in interstate commerce, and, as such, exempt from taxation in the 
second state: Kelley v. Ehoads, 188 U. S. 1. 

=« Martin v. Waddell, 16 Pet. 367; Eundle v. D. & E. C. Co., 14 How. 80; 
Den V. Jersey Co., 15 id. 426; Smith v. Maryland, 18 id. 71; Jones v. 
Soulard, 24 id. 41; E. Co. v. Schurmeir, 7 Wall. 272; Weber v. Harbor 
Commissioners, 18 WaU. 57; I. C. E. v. Illinois, 146 U. S. 387, 184 id. 11; 
St. A. r. W. P. Co. V. St. P. W. Comrs., 168 id. 349. 



72 THE BEGULATION" OF COMMERCE. 

as before, the title to navigable waters and to the soil under 
them and the right to fish therein remained in the riparian 
state, its proprietary title extending in the case of inland 
waters constituting its boundary ^^ from ordinary high- 
water mark ad medium filce, and in the case of the sea and 
its bays, to the distance that the international jurisdiction 
of the United States extended ; and by force of the Consti- 
tution, the United States acquired only the right to exer- 
cise over navigable waters its power of regulating naviga- 
tion, and states which were admitted to the union subse- 
quently to the adoption of the Constitution have, of course, 
in this respect the same rights of sovereignty and jurisdic- 
tion as the original thirteen states.^*^ Therefore, a state 
may rightfully regulate the exercise of the right of fishing 
in its navigable waters, and enforce by judicial proceed- 
ings a forfeiture of vessels whose navigators fail to con- 
form to the regulations so prescribed, and a license to 
navigate granted by the United States confers no im- 
munity from the operation of such regulations.^^ The 
right of the people of a state to fish in its navigable waters 
''comes not from their citizenship alone, but from their 
citizenship and property combined, ' ' ^^ and it is, therefore, 
a right which does not by force of the Constitution vest in 
the citizens of other states. The power granted to the 
United States of jurisdiction in admiralty does not carry 
with it a cession of navigable waters, or of general juris- 
diction over them, and, therefore, a murder committed on 
a vessel of the navy of the United States while at anchor 

™ Barney v. Keoktik, 94 U. S. 324; Hardin v. Jordan,' 140 id. 371; 
Mitchell V. Smale, ibid. 406. 

"" Pollard V. Hagan, 3 How. 212 ; Weber v. Harbor Commissioners, 18 
Wall. 57; Shively v. Bowlby, 152 IJ. S. 1; M. T. Co. v. Mobile, 187 id. 
479; U. S. V. M. R Co., 189 id. 391. 

^^ Smith V. Maryland, 18 How. 71 ; Manchester v. Massachusetts, 139 
U. S. 240; cf. Geer v. Connecticut, 161 id. 519. 

'^ McCready v. Virginia, 94 U. S. 391, 395. 



PEEFERENCES OF POETS. 73 

in navigable waters within tlie jurisdiction of a state is not 
cognizable in a court of the United States.^^ 

Preferences of ports. 

36. The Constitution declares that ''no preference shall 
be given by any regulation of commerce or revenue to the 
ports of one state over those of another. ' ' ^* This prohi- 
bition is obviously intended to guard against favouritism 
in customs regulations, and, therefore, does not apply to 
the diversion of water from one navigable river to another 
in an improvement of navigation,^^ nor to the legalization 
by an act of Congress of a bridge over navigable waters, 
though indirectly obstructing the commerce of a port.^^ 

Duties upon exports. 

37. The United States are expressly forbidden to tax 
exports.^"^ This prohibition applies to foreign, and does 
not apply to interstate, commerce,^^ nor to goods ''im- 
ported from the United States" into Porto Rico.^^ In- 
ternal revenue stamps required to be placed by the manu- 
facturer upon articles for exportation do not fall within 
the prohibition."^ On the other hand, a specific stamp 

«'U. S. V. Bevans, 3 Wheat. 336. 

" Article I, Sec. 9. 

^ South Carolina v. Georgia, 93 U. S. 4. 

^Pennsylvania v. W. & B. B. Co., 18 How. 421, 423. 

«^ Const., Article I, Sec. 9. 

« Woodruff V. Parham, 8 Wall. 123. 

«»Act of 12th April, 1900, 31 Stat. 77, c. 191, sees. 2 and 3; Dooley v. 
U. S., 183 U. S. 151. White, J., held that the fact that Porto Eico is not 
a foreign country is decisive. Bro^vn, Gray, Shiras, and McKenna, JJ., con- 
curred, holding, also, that the tax vras imposed upon importations into 
Porto Eico, and not upon exports from the United States. Fuller, C. J., 
and Harlan, Brewer, and Peckham, JJ., dissented upon the ground that the 
prohibition forbids duties upon exports "irrespective of their destina- 
tion." See supra, see. 17. 

"Pace V. Burgess, 92 U. S. 372; Turpin v. Burgess, 117 id. 504; Cornell 
V. Coyne, 192 id. 418. 



74 THE EEGULATION" OF COMMEECE. 

duty imposed upon bills of lading covering goods exported 
is a tax upon the articles covered by the bill of lading, and, 
therefore, a tax upon exports."^^ 

Duties upon tonnage. 

38. The Constitution in express terms forbids the states 
to impose duties on tonnage. Section 10 of Article I of 
the Constitution declares that ''no state shall, without the 
consent of Congress, lay any duty on tonnage." The 
word "tonnage," as applied to American shipping, means 
''their entire internal capacity, expressed in tons of one 
hundred cubical feet each, as estimated and ascertained by 
those rules of admeasurement and computation'^^ which 
are prescribed by the acts of Congress.'^^ The constitu- 
tional prohibition prevents state taxation of "water-crafts 
plying in the navigable waters of the state ... at the 
rate of $1 per ton of registered tonnage. ' ' '^^ Nor can a 
state require that every vessel arriving at a port of the 
state shall pay to the port wardens a fixed sum whether the 
wardens be, or be not, called on to perform any services 
for the vessel ; '^^ nor compel every vessel arriving at any 
quarantine station on the coast of the state to pay a fixed 
sum per ton;^^ nor require every steamboat mooring in 
any port of the state to pay a sum regulated by the ton- 
nage of the boat; "^^ nor require all vessels entering a 
certain port to load or unload, or making fast to any wharf 
therein, to pay a sum regulated by the registered tonnage 

" Fairbank v. U. S., 181 U. S. 283. Harlan, Gray, WMte, and McKenna, 
JJ., dissented. 

"2 State Tonnage Tax Cases, 12 Wall. 204. 
'» 13 Stat. 70 ; ibid. 444. 
'^ State Tonnage Tax Cases, 12 Wall. 204. 
'" Steamship Co. v. Port Wardens, 6 Wall. 31. 
'"Peete v. Morgan, 19 Wall. 581. 
"Cannon v. New Orleans, 20 Wall. 577. 



POET DUES. 75 

of the vesselJ^ In each one of these cases, the taxation 
imposed by the state would have been void as an attempted 
regulation of interstate commerce, had there been no 
express prohibition of state tonnage duties. 

Port dues. 

39. Port dues, that is, charges imposed on vessels as 
instruments of commerce, and payable by all vessels enter- 
ing, remaining in, or leaving a port, by reason of such 
entry, stay, or departure, and without regard to services 
rendered to or received by the vessel, are regulations of 
conunerce, and as such cannot be rightfully imposed under 
state authority.'^® Under this rule, as expounded in 
Steamship Co. v. Port Wardens,^^ a charge of $5 per vessel 
payable to the wardens ' 'whether called on to perform any 
service or not, for every vessel arriving in" the port of 
New Orleans, was held to be a wrongful imposition. So 
also, under pretence of making port regulations, a state 
cannot rightfully vest in the master and wardens of a port, 
or in his deputies, a monopoly of the survey of the hatches 
of sea-going vessels coming to the port, or of damaged 
goods on such vessels, for such a monopoly is a burden 
upon, and therefore a regulation of, foreign and interstate 
commerce.^^ The prohibition of state duties on tonnage^^ 
forbids the imposition by a state of port dues in the form 
of a tax of $5 for the first hundred tons and 1 1-2 cents for 
each additional ton payable by vessels owned in another 
state and entering a harbour of the taxing state in the pur- 
suit of commerce,^^ and also of a tax similarly propor- 

" I. S. S. Co. V. Tinker, 94 U. S. 238. 

" Such dues are also open to objection as duties on tonnage. Section 36. 

••6 Wall. 31. 

" Foster v. Master and Wardens of the Port of New Orleans, 94 IT. S. 246. 

»== Section 38. 

'^ Peete v. Morgan, 19 Wall. 581. 



76 THE REGULATION OF COMMERCE. 

tioned on ' ' all steamboats which, shall moor or land in any 
part of " a state port.*^ 

Pilotage. 

40. As the thirteen original states were, before the 
ratification of the Constitution, existing governments, 
they had, with the obvious exception of New Hampshire, 
enacted laws regulating pilotage. The first Congress ^^ 
declared that ''all pilots . . . shall continue to be regu- 
lated in conformity with the existing laws of the states 
respectively wherein such pilots may be, or with such 
laws as the states may respectively hereafter enact for 
the purpose, until further legislative provision shall be 
made by Congress." It has been held that, pilotage 
being a subject of local concern, the states may regulate 
it so long as, and to the extent that. Congress does not 
legislate with regard to it.^^ A state may impose upon 
a vessel refusing to take an offered pilot the forfeiture of 
half pilotage fees, and it may exempt from such for- 
feiture vessels engaged in a particular trade.*^ The 
forfeiture of half pilotage fees being, not in the nature of 
a penalty, but of compensation under an implied con- 
tract,^^ those fees must be paid though the pilot's services 
were tendered and refused before the vessel had come 
within the jurisdiction of the state,^*^ and though the 
statute authorizing the recovery was repealed after the 
services of the pilot were tendered and refused, but 
before the action was brought to recover theref or.^^ Such 

^* Cannon v. New Orleans, 20 Wall. 577. 

«^Act 7tli August, 1789, sec. 4, 1 Stat. 54. 

*" Cooley V. The Board of Wardens, 12 How. 299. 

^' Ex parte McNiel, 13 Wall. 236; WUson v. McNamee, 102 U. S. 572. 

^ Ex parte McNiel, supra. 

** Wilson V. McNamee, supra. 

"^ S. S. Co. v. Joliffe, 2 Wall. 450. 



KEGTJLATION OF NAVIGATION. 77 

a statute may impose a compulsory obligation on foreign 
vessels.^^ But a state may not discriminate in its pilot- 
age regulations, as by requiring vessels of some states to 
pay half pilotage fees and exempting vessels of other 
states from that requirement; nor can a vessel under the 
control of a pilot licensed under the laws of the United 

States be required to take a pilot under the laws of a 
state.»2 

Regulation of navigation. 

41. The power to regulate foreign and interstate com- 
merce includes the control of navigation in the prosecu- 
tion of such commerce. The United States may, there- 
fore, license vessels navigating waters within the terri- 
torial jurisdiction of a state and plying between ports of 
different states, and a state may not create a monopoly 
interfering with the freedom of such navigation.^^ The 
United States may require, under a penalty, the inspec- 
tion and licensing of a steam vessel ^^ engaged in the 
transportation on a state's internal waters of goods from, 
or destined to, points in other states.^^ A state may not 
require vessels licensed by the United States to carry on 
the coasting trade and plying between a port in that state 
and ports in other states,^^ or vessels also licensed by the 
United States and employed as lighters and towboats in 
a port of a state in aid of vessels engaged in commerce, 
either foreign or coastwise,^ ^ to make return to the local 
authorities of the names, places of residence, and re- 

« The China, 7 WaU. 53. 

'^ Spraigue v. Thompson, 118 IT. S. 90. 

®^ Gibbons v. Ogden, 9 Wheat. 1. 

"Acts 7th July, 1838, 5 Stat. 304; 30th August, 1852, 10 Stat. 61. 

'^ The Daniel BaU, 10 Wall. 557, 

'« Sinnot v. Davenport, 22 How. 227. 

'^ Foster v. Davenport, 22 How. 244. 



78 THE EEGULATION OF COMMEKCE. 

spective interests of the owners of such vessels.^^ A 
state may not require 'Hhose engaged in the transporta- 
tion of passengers among the states to give to all persons 
traveling within that state, upon vessels employed in 
such business, equal rights and privileges in all parts of 
the vessel without distinction on account of race or 
colour," for such a statute acts directly upon the business, 
as it comes into the state from without, or goes out from 
within.^^ On the other hand, a state may grant an ex- 
clusive monopoly of the navigation of an internal water- 
way which, by reason of a lack of outlet or other 
connection with any possible system of interstate or 
foreign transportation, is available only for the internal 
commerce of the state, and on such a waterway an United 
States coasting enrollment and license is inoperative.^"^ 

Port regulations. 

42. A state may establish port regulations, prescribing 
where a vessel may lie in harbour, how long she may re- 
main there, and what lights she must show at night ; thus 
in The James Gray v. The John Fraser,^ an admiralty 
cause of damage resulting from a collision of the two 
vessels in Charleston harbour, that one was held to be in 
fault, which had, by its failure to display lights in con- 
formity with the regulations of the port imposed under 
authority of the state, been the cause of the collision. 
Taney, C. J., said,^ "Regulations of this kind are neces- 
sary and indispensable in every commercial port, for the 
convenience and safety of commerce, and the local au- 

^ The ease of New York v. Miln, 11 Pet. 102, though cited, and relied on, 
in the argument, was not noticed in the judgment of the court. 

»» Hall V. Be Cuir, 95 U. S. 485 ; cf. L., N. O. & T. Ey. v. Mississippi, 133 
id. 587; C. & O. Ey. v. Kentucky, 179 id. 388. 
^""Veazie -;;. Moor, 14 How. 568. 

* 21 How. 184. 

"F. 187. 



PORT BEGULATIONS. 79 

thorities have a right to prescribe at what wharf a vessel 
may lie, and how long she may remain there, where she 
may nnload or take on board particular cargoes, where 
she may anchor in the harbour, and for what time, and 
what description of light she shall display at night to warn 
the passing vessels of her position, and that she is at anchor 
and not mider sail. They are like to the local usages of 
navigation in different ports, and every vessel, from what- 
ever part of the world she may come, is bound to take 
notice of them and conform to them. And there is nothing 
in the regulations referred to in the port of Charleston, 
which is in conflict with any law of Congress regulating 
commerce, or with the general admiralty jurisdiction con- 
ferred on the courts of the United States." Ostensibly 
on the same principle, it was held in New York v. Miln,^ 
that a state may require under a penalty the master of 
every passenger-carrying vessel on arriving at any port 
within the state to report to the state authorities the name, 
place of birth, last legal settlement, age, and occupation 
of every passenger, the statute under consideration being 
one enacted by New York in 1824, and the court affirming 
its validity on the ground that it was a regulation, not of 
commerce, but of police, and as such falling within the 
reserved powers of the state. The authority of the case 
is, however, much shaken by the admirably reasoned dis- 
senting judgment of Story, J., with whose conclusions 
Marshall, C. J., concurred,* and the result reached by the 
court is clearly inconsistent with the later cases of 
Sinnot v. Davenport,^ Foster v. Davenport,^ and the yet 
later cases, which hold that a state cannot, directly or 

^ 11 Pet. 102. 

* p. 161. 

* 22 How. 227. 

''22 How. 224; supra, Section 41. 



80 THE EEGULATIOlSr OF COMMEECE. 

indirectly, tax the transportation of passengers coming 
from foreign conntriesJ 

Quarantine. 

43. As Brown, J., said in Bartlett v. Lockwood,^ 
''While, under its power to regulate foreign and interstate 
commerce, the authority of Congress to establish quaran- 
tine regulations, and to protect the country as respects 
its commerce from contagious and infectious diseases, has 
never in recent years been questioned, such power has been 
allowed to remain in abeyance ; and Congress, doubtless in 
view of the different requirements of different climates 
and localities, and of the difficulty of framing a general 
law upon the subject, has elected to permit the several 
states to regulate the matter of protecting the public health 
as to themselves seemed best." A state may, therefore, 
prohibit the entry into its territory of physically infected 
persons or goods, and it may provide for an examination 
of all persons or goods coming into its territory in order 
to determine whether or not they be physically infected, 
and to defray the expenses of such sanitary examinations 
it may collect charges, provided that such charges be not 
in the form of duties on tonnage and that they do not un- 
necessarily interfere with foreign or interstate commerce. 
A state may, therefore, require all vessels coming into its 
ports to stop at designated quarantine stations, submit to 
a sanitary examination, and pay therefor fees rated in 
amount in proportion to the maritime class to which the 
vessel may belong and equal in amount for all vessels of 
the same class.*^ On the other hand, a state cannot, for the 
purpose of defraying the expenses of enforcing her 

''Infra, Section 52&. 
« 160 IJ. S. 357, 361. 

° Morgan v. Louisiana, 118 IT. S. 455; Bartlett v. Lockwood, 160 id. 357. 
See also C. F. D. N. v. Louisiana, 186 id. 380. 



FEKEIES. 81 

quarantine regulations, impose on vessels entering her 
harbours in the prosecution of commerce, taxes based upon 
the tonnage of the vessel.^ ^ A state may enact statutes 
declaring that persons transporting, or having in their 
possession, diseased animals are to be held liable for any 
damage caused by tlie spread of disease by such animals,^ ^ 
and a state may authorize its sanitary authorities to ex- 
clude from its territory animals imported from localities 
in other states wherein those sanitary authorities may 
determine epidemic diseases among such animals to 
exist; ^^ but a state may not, under the pretext of quaran- 
tine laws, regulate interstate commerce, as by prohibiting 
the driving or conveyance of Texan, Mexican, and Indian 
cattle into the state between the 1st of March and the 1st of 
November in any year,^^ or by prohibiting the sale of meat 
which has not been inspected on the hoof within the state.^* 
The test is, as stated by McKenna, J., "whether the police 
power of the state has been exercised beyond its province, 
exerted to regulate interstate commerce, exerted to exclude 
without discrimination the good and the bad, the healthy 
and the diseased, and to an extent beyond what is neces- 
sary for any proper quarantine. . ■ . . The prevention of 
disease is the essence of a quarantine law. Such a law is 
directed not only to the actually diseased, but to what has 
become exposed to disease." ^^ 

Ferries. 

44. A ferry is ' ' a franchise grantable by the state, to be 
exercised within such limits and under such regulations as 

^"Peete v. Morgan, 19 WaU. 581. 

" Kimmish v. Ball, 129 U. S. 217 ; M., K. & T. Ey. v. Haber, 169 id. 613. 
^^Easmussen v. Idaho, 181 U. S. 198; Smith v. S. L. & S. W. E., ibid. 248. 
See also Eeid v. Colorado, 187 id. 137. 
^» E. Co. V. Husen, 95 U. S. 465. 
" Minnesota v. Barber, 136 II. S. 313. 
" Smith V. S. L. & S. W. Ey., 181 U. S. 248, 255. 



82 THE KEGULATION" OF COMMERCE. 

may be required for the safety, comfort, and convenience 
of the public," ^^ and such a franchise confers the right of 
embarking and landing passengers and freight at desig- 
nated points on a water bank.^^ Such a franchise is neces- 
sarily exclusive.^ ^ The state which grants the franchise 
may annex conditions to its exercise, and may, therefore, 
tax the ferry and its appliances. It may also tax the boats 
and other personal property of the owner of the ferry, if 
that owner be by residence subject to its jurisdiction.^^ 
On the other hand, a state cannot tax ferry boats which 
only come within its jurisdiction in the movement of inter- 
state commerce.^*^ 

Bridges and dams. 

45. Navigability in fact is the test of navigability in law. 
If a lake, river, or stream "be capable in its natural state 
of being used for purposes of commerce, no matter in what 
mode the commerce be conducted, it is navigable in fact, 
and becomes in law a public river or highway. " ^^ As 
navigable waters are no longer the sole, nor, indeed, the 
main channels of commerce, and as that volume of trade 
which is carried over such waters by bridges or viaducts 
is in many cases entitled, by reason of its magnitude, to 
greater consideration than that which is moved in boats 
upon the water, it must be determined in the case of any 
bridge, or other obstruction, whose erection or the method 
of whose construction is called into question, whether or 

« G. F. Co. V. Pennsylvania, 114 U. S. 196, per Field, J. 

^' " A ferry is in respect of the landing place, and not of tlie water : ' ' 
Vin. Abr. Vol. XIII, P. 208, Title "Ferry." 

^^ Fanning v. Gregoire, 16 How. 524; Conway v. Taylor, 1 Bl. 603. 

"W. F. Co. V. East St. Louis, 107 U. S. 365; T. Co. v. Wheeling, 99 id. 
273. 

=oSt. Louis V. W, F. Co., 11 Wall. 423; G. F. Co. v. Pennsylvania, 114 
U. S. 196. See also St. Clair County v. I. S. & C. T. Co., 192 id. 454. 

" The Montello, 20 Wall. 430, 441 ; Leovy v. U. S., 177 U. S. 621 ; The 
Daniel Ball, 10 Wall. 557. 



BRIDGES AND DAMS. 83 

not the public interest will be promoted by its erection or 
by its construction in the particular manner, and such a 
matter is primarily one for the decision of the legislature, 
rather than of any court. As the subject is that of pos- 
sible obstruction of highways of foreign or interstate com- 
merce, final jurisdiction is necessarily vested in Con- 
gress,^- which may forbid, or permit upon conditions, the 
erection of a bridge under state authority,^^ or may legal- 
ize a bridge already erected, pending a suit to enjoin its 
construction,^* or even after the Supreme Court of the 
United States has entered a final decree declaring the 
bridge as constructed to be an unlawful obstruction ; ^^ or 
may reserve for future congressional action the approval 
of the construction of any bridge under an act of the legis- 
lature of any state over or in any ' ' stream or other navi- 
gable water not wholly within the limits of such state, ' ' and 
may delegate to the Secretary of War the power of approv- 
ing bridges and other obstructions in navigable waters 
wholly within the limits of any one state, and may prohibit 
all obstructions not so approved.^^ This congressional 
legislation does not deprive the states of authority to 
bridge or otherwise obstruct intraterritorial streams, 
but only creates ' ' an additional and cumulative remedy to 
prevent such structure although lawfully authorized, from 
interfering with commerce, ' ' ^'^ nor does it vest in the 
Secretary of War ' ' the right to determine when and where 
a bridge may be built, "^s Therefore, subject to the 

^N. B. Co. V. U. S., 105 U. S. 470; U. S. v. B. B. B. Co., 176 id. 211. 

« N. B. Co. V. U. S., 105 U. S. 470. 

^ The Clinton Bridge, 10 Wall. 454. 

^ Pennsylvania v. W. & B. B. Co., 18 How. 421. 

"» Act of 13th July, 1892, c. 158, 27 Stat. 88, 110. 

-' Per White, J., in L. S. & M. S, Ey. v. Ohio, 165 U. S. 365, 369. 

^Ibid. 368. See also Cummings v. Chicago, 188 U. S. 410; Montgomery 
V. Portland, 190 id. 89, which decide that under existing legislation the 
right to construct a wharf or dock in a navigable water of the United 



84 THE REGULATION OF COMMEECE. 

paramount authority of the United States, as exercised by 
Congress, or, under the legislation now in force, as dele- 
gated to the Secretary of War, a state may partially ob- 
struct by bridges, or wholly obstruct by dams, navigable 
waters which are wholly within its limits.^^ The power of 
bridging their navigable waters is not affected in the states 
carved out of the Northwest Territory by the provision in 
the ordinance of 1787 for the free navigation of the Missis- 
sippi and the St. Lawrence "without any tax, duty, or 
impost therefor, ' ' ^" nor in the states of California, 
Louisiana, or Oregon by the provisions of the acts of Con- 
gress admitting them to the union and declaring their 
navigable waters to be forever f ree.^^ A state cannot law- 
fully appropriate water for its non-navigable streams to 
such an extent as to impair the navigation of its navigable 
streams .^2 In the case of the bridge spanning the Ohio 
river and connecting the city of Cincinnati, in the state 
of Ohio, with the town of Covington, in the state of Ken- 
tucky, it was held by the majority of the court ^^ that the 

states wholly within the limits of a state depends upon the consent of the 
state in addition to the consent of the federal government. 

=* Willson V. The B. B. C. M. Co., 2 Pet. 245 ; Pennsylvania v. The W. & 
B. B. Co., 9 How 647, 11 id. 528, 13 id. 518, 18 id. 421; M. & M. E. v. 
Ward, 2 Bl. 485 ; The Albany Bridge Case, 2 Wall. 403 ; The Passaic Bridge 
Case, 3 Wall. 782; Gilman v. Philadelphia, ihid. 713; Pound v. Turck, 
95 XJ. S. 459; Escanaba Co. v. Chicago, 107 id. 678; Cardwell v. A. B. Co., 
113 id. 205; Hamilton v. V., S. & P. E., 119 id. 280; Huse v. Glover, ibid. 
543; W. B. Co. v. Hatch, 125 id. 1; L. S. & M. S. E. v. Ohio, 165 id. 365; 
U. S. V. B. B. B. Co., 176 id. 211; Eider v. U. S., 178 id. 251; Leovy 
V. U. S., 177 id. 621. 

3" Escanaba Co. v. Chicago, 107 U. S. 678; Huse v. Glover, 119 id. 543; 
Sands v. M. E. I. Co., 123 id. 288. 

^^ Cardwell v. A. B. Co., 113 U. S. 205; Hamilton v. V., S. & P. E., 119 
id. 280; W. B. Co. v. Hatch, 125 id. 1. 

'' U. S. V. E. G. D. & I. Co., 174 U. S. 690. 

^C. & C. B, Co. V. Kentucky, 154 U. S. 204; Brown, Harlan, Brewer, 
Shir as, and Jackson, J J., concurring in the judgment and also in the 
opinion, and Fuller, C. J., and Eield, Gray, and White, JJ., concurring in 
the judgment but not in the opinion. 



IMPROVEMENTS OE NAVIGATION. 85 

traffic across the river was interstate commerce, that the 
bridge was an instrument of that commerce, and that Con- 
gress possesses the power to fix the charges for the traffic 
over the bridge, the authority of the state being limited 
to fixing tolls exclusively within its territory ; . but the 
minority of the court held that, as Congress had made no 
pro\dsions as to the tolls, it had thereby manifested its 
intention that the rates of toll should be as established by 
the two states. It has also been held that a state may tax 
so much of an interstate bridge as is within its territory ,^^ 
and that a state may tax the capital stock of an interstate 
bridge company incorporated by it.^^ 

Improvements of navigation. 

46. The United States may, in the discretion of Con- 
gress, authorize or prohibit improvements in the water- 
ways of foreign or interstate commerce. It may change the 
established channels of rivers,^^ and dredge harbours,^'^ 
and the action of the United States is exclusive of any 
right to the contrary asserted under state authority. On 
the other hand, a state may exercise exclusive control over 
such waterways as are wholly within its territory, and are 
not used in the movement of foreign or interstate com- 
merces^ The principle controlling the cases on this sub- 
ject is nowhere more clearly stated than by Field, J., who 
said, in County of Mobile v. Kimball,^^ ' ' The uniformity of 
commercial regulations, which the grant to Congress was 
designed to secure against conflicting state provisions, was 
necessarily intended only for cases where such uniformity 

" p., C, C. & S. L. Ey. V. Board of Public Works, 172 U. S. 32. 

^K. & H. B. Co. V. Illinois, 175 U. S. 626. 

^ South Carolina v. Georgia, 93 TJ. S. 4. 

^' Wisconsin v. Duluth, 96 U. S. 379. 

^ Veazie v. Moor, 14 How. 568 ; Withers v. Buckley, 20 id. 84. 

•^ 102 U. S. 691, 698. 



86 THE EEGULATION OF COMMERCE. 

is practicable. Wliere from the nature of the subject or 
the sphere of its operations the case is local and limited, 
special regulations adapted to the immediate locality could 
only have been contemplated. State action upon such 
subjects can constitute no interference with the com- 
mercial power of Congress, for when that acts the state 
authority is superseded. Inaction of Congress upon these 
subjects of a local nature or operation, unlike its inaction 
upon matters affecting all the states and requiring uni- 
formity of regulation, is not to be taken as a declaration 
that nothing shall be done with respect to them, but it is 
rather to be deemed a declaration that for the time being, 
and until it sees fit to act, they may be regulated by state 
authority. The improvement of harbours, bays, and 
navigable rivers within the states falls within this last 
category of cases. The control of Congress over them is 
to insure freedom in their navigation, so far as that is 
essential to the exercise of its commercial power. Such 
freedom is not encroached upon by the removal of ob- 
structions to their navigability or by other legitimate 
improvements. The states have as full control over their 
purely internal commerce as Congress has over commerce 
among the several states and with foreign nations : and to 
promote the growth of that internal commerce and insure 
its safety they have an undoubted right to remove obstruc- 
tions from their harbours and rivers, deepen their chan- 
nels, and improve them generally, if they do not impair 
their free navigation as permitted under the laws of the 
United States, or defeat any system for the improvement 
of their navigation provided by the general government. ' ' 
A state may, therefore, if Congress does not otherwise 
direct, deepen and widen the harbours on its coast,^*^ con- 
struct dams and locks in navigable rivers, and levy tolls 

*» County of Mobile v. Kimball, 102 U. S. 691. 



WHAEVES AND PIEES. 87 

upon shipping using the improved waterway,*^ but a state 
may not levy charges for an improved waterway upon ves- 
sels whose draught is so light that the improvement has 
been of no benefit to such vessels.*^ 

Wharves and piers. 

47. A state may build wharves on navigable waters and 
collect reasonable tolls for the use thereof,^^ for such tolls, 
not being impositions by virtue of sovereignty, are not 
taxes but are charges for services rendered or for con- 
veniences provided, and they are claimed in right of 
proprietorship. Whether wharfage tolls be, or be not, in 
fact reasonable is not a question of federal law, nor as 
such cognizable in a court of the United States in cases 
other than those in which the federal court has acquired 
jurisdiction by reason of the citizenship of the parties."** 
Nevertheless, the right of a state to build wharves and 
charge tolls therefor cannot be so exercised as to dis- 
criminate in favour of the products of its own territory 
and against those of other states.*^ 

State duties upon imports and exports. 

48. ''Imports" are goods brought into a state from a 
foreign country, and goods brought from one state into 
another are not ''imports."*^ As the power vested in 
the United States to regulate commerce with foreign 
nations includes the power to impose duties on the im- 
portation of foreign goods, and to license, on the payment 

^Huse V. Glover, 119 U. S. 543; Sands v. M. E. I. Co., 123 id. 288; L. & 
P. Co. V. Mullen, 176 id. 126. 

^ Harman v. Chicago, 147 U. S. 396. 

« P. Co. V. Keokuk, 95 IT. S. 80 ; P. Co. v. St. Louis, 100 id. 423 ; Vieks- 
burg V. Tobin, iUd. 430; P. C. v. Catlettsburg, 105 id. 559. 

« T. Co. V. Parkersburg, 107 U. S. 691 ; O. P. Co. v. Aiken, 121 id. 444. 

*= Guy V. Baltimore, 100 U. S. 434 ; infra, Section 50. 

*^ A. S. & W. Co. V. Speed, 192 U. S. 500. 



88 THE EEGULATION OF COMMERCE. 

of those duties, the sale of the imported goods within any 
state, and as there is an express constitutional prohibition 
of state duties on imports and exports, excepting such 
duties as may be absolutely necessary for executing the 
inspection laws of the state, it follows that a state cannot 
require under a penalty importers of foreign goods by the 
bale or package, and vendors of the same by wholesale, to 
take out a license as a prerequisite to the sale of such im- 
ported goods in the original form and package in which 
they are imported, and before they become incorporated 
with the mass of property in the state.*'^ On the same 
principle, a state cannot impose an ad valorem tax upon 
imported goods remaining in their original cases in the 
hands of the importer, even though a similar tax be im- 
posed on all merchandise in the state ; *^ and a state cannot 
tax an auctioneer's sales of imported goods in their orig- 
inal cases and for the account of the importers thereof .^^ 
Yet separately wrapped packages of foreign dry goods 
brought into a state in wooden cases are subject to state 
taxation upon their being taken from their cases.^*^ 
Merchandise brought from a foreign country and which 
by the terms of the contract of purchase is not to be at the 
risk of the purchaser until delivered to him in the port of 
entry, does not come within the constitutional meaning of 
the term "imports," and such goods, though in their orig- 
inal packages, may be taxed by the state in whose port 
their purchase is completed by delivery.^^ 

*' Brown v. Maryland, 12 Wheat. 419. 

*«Low V. Austin, 13 Wall. 29. 

"Cook V. Pennsylvania, 97 U. S. 566. 

''" May V. New Orleans, 178 U. S. 496. Almy v. California, 24 How. 169, 
is explained in Woodruff v. Parham, 8 Wall. 123, 138, and should have been 
decided upon the ground that the tax in question was a tax upon the trans- 
portation of goods from one state to another, and, therefore, a regulation 
of commerce and as such void. 

" Waring v. The Mayor, 8 Wall. 110. 



STATE INSPECTION LAWS. 89 

State inspection laws. 

49. The object of inspection laws is to improve the qual- 
ity of articles produced by the labour of a country, to fit 
them for exportation, or, it may be, for domestic use. 
They act upOn the subject before it becomes an article of 
foreign commerce, or of commerce among the states, and 
prepare it for that purpose.^^ Such laws prescribe some 
or all of certain requisites, such as the quality of the 
article, the form, capacity, dimensions, weight, or marking 
of the package, and, to enforce compliance with their 
requirements, they provide for supervision by public 
officers.^^ Therefore, a state may prohibit under a pen- 
alty the exportation, without inspection, of articles pro- 
duced in the state, such as tobacco,^^ and may require the 
official measurement of coal,^^ and lumber,^^ and the in- 
spection of fertilizers.^^ The words ''inspection laws," 
"imports," and "exports," as used in the Constitution, 
having exclusive reference to property, as distinguished 
from persons,^^ a state per capita tax on immigrants can- 
not be sustained as a means of executing the inspection 
laws of a state.^^ But a state may not, under the pretence 
of an inspection law, regulate interstate commerce, as by 
requiring an inspection by a public officer, upon payment 
of fees, of all meat slaughtered more than one hundred 
miles from the place of sale, when there is no such require- 
ment with regard to meat slaughtered at a less distance 
from the place of sale ; ^° or by requiring an inspection of 

" Gibbons v. Ogden, 9 Wheat. 1, 203, per Marshall, C. J. 

" Turner v. Maryland, 107 U. S. 55. 

" Turner v. Maryland, uhi supra. 

«P. & S. C. Co. V. Louisiana, 156 U. S. 590. 

^•L. & P. Co. V. Mullen, 176 U. S. 126. 

" P. G. Co. V. North Carolina, 171 U. S. 345. 

^^Crandall v. Nevada, 6 Wall. 35. 

"■" People V. C. G. T., 107 U. S. 59. 

^ Brimmer v. Eebman, 138 TJ. S. 78. 



90 THE REGULATION OF COMMEECE. 

all flour ground without the state, when there is no such 
requirement as to flour ground within the state ; ^^ or by 
prohibiting the sale of meat which has not been inspected 
on the hoof within the state ; ^^ or by requiring, as a pre- 
requisite to the shipment of alcoholic liquors into the state, 
an analysis by the state chemist of a sample thereof.®^ 

Taxation discriminating against goods from other states. 

50. A state may tax goods brought in from another state, 
though in the hands of the consignee and in the original 
packages ; "^^ but a state cannot by taxation discriminate 
against either the natural products of, or the goods manu- 
factured in, other states, whether by requiring of every 
non-resident trader as a prerequisite to his sales of other 
than agricultural products of or articles manufactured in 
the state, a higher license fee than is required of traders 
in domestic goods ; ^^ or by requiring payment of a license 
fee by vendors of merchandise ' ^ not the growth, produce, 
or manufacture ' ' of the state, no license fee being required 
of vendors of domestic merchandise ; ^^ or by charging 
vessels laden with the products of other states for the use 
of public wharves, when vessels laden with the products 
of the state are permitted to use such wharves without 
charge ; ^^ or by requiring a non-resident merchant desir- 
ing to sell by sample in the state to pay for a license to do 
that business a sum to be ascertained by the amount of his 

"^ Voight V. Wright, 141 U. S. 62. 

^Minnesota v. Barber, 136 U. S. 313. 

"' Vance v. W. A. V. Co., 170 U. S. 438. 

'"Woodrufe V. Parham, 8 WaE. 123; Brown v. Houston, 114 U. S. 622; 
Emert v. Missoiiri, 156 id. 296. 

^' Ward V. Maryland, 12 Wall. 418. Bradley, J., concurred, but held that 
the license required would be equally void if it imposed upon residents 
the same burden for selling goods as it imposed upon non-residents, for 
it wotdd be in fact a duty upon importations from one state to another. 

™ Welton V. Missouri, 91 U. S. 275 ; Webber v. Virginia, 103 id. 344. 

''Guy V. Baltimore, 100 U. S. 434. 



TAXING GOODS FEOM OTHER STATES. 91 

stock in trade in the state where he resides, and in which 
he has his principal place of business ; ^^ or by imposing a 
tax on each selling agent of a foreign dealer while not 
imposing a tax upon the selling agents of a domestic 
dealer ; ^^ or by imposing a license tax upon wholesale 
dealers in brewed or malt liquors but exempting from such 
tax all dealers paying a lesser tax for the privilege of 
manufacturing liquors within the state ; "^^ or by statutes 
under the guise of inspection laws imposing discriminating 
taxes upon products of other states, as, for instance, by 
requiring that no meat slaughtered one hundred miles or 
more from the place of sale should be offered for sale un- 
less previously inspected by a local official and a fee paid 
therefor, while requiring no inspection to be made of meat 
slaughtered within one hundred miles of the place of 
sale ; '^^ or by requiring flour brought into the state and 
offered for sale therein to be inspected by a state official 
and a fee paid therefor, while requiring no inspection to 
be made of flour produced within the stateJ^ Nor can a 
state, under the acf^^ which was passed to legislatively 
overrule the Original Package Case,^^ establish, so far as 
regards the sale of intoxicating liquors, a system which 
would in effect discriminate between interstate and 
domestic commerce in commodities whose manufacture 
and use are permitted by the state.'^^ There is no unlaw- 
ful discrimination in requiring prepayment of the tax by 
vendors of the products of other states, while vendors of 
domestic goods are permitted to pay the same tax on re- 

•• Corson v. Maryland, 120 U. S. 502, 506. 

•» Walling V. Michigan, 116 U. S. 446. 

"Lyng V. Michigan, 135 U. S. 161. 

" Brimmer v. Eebman, 138 U. S. 78. 

" Voight V. Wright, 141 U. S. 62. 

"Act of 8th August, 1890, 26 Stat. 313, e. 728, 

'*Leisy v. Hardin, 135 U. S. 100. 

'" Scott V. Donald, 165 U. S. 58, 100. 



92 THE REGULATION OF COMMERCE. 

turns from time to timeJ^ On the other hand, non-dis- 
criminating taxation may lawfully be imposed by a state, 
as where a state levies a tax upon all peddlers of sewing 
machines without regard to their place of manufacture,^^ 
or by taxing the gross yearly commissions of all general 
agents selling on commissions^^ A state which taxes the 
traffic in any intoxicating liquors at any place other than 
the place of manufacture does not impose a discriminating 
tax upon a dealer in liquors manufactured in another 
stateJ^ Of course, one who claims under these cases ex- 
emption from the burden of state taxation must prove his 
right and must show a discrimination in taxation as 
against goods brought in from another state.®^ The cases 
that have been cited forbid only that state taxation which 
discriminates in favour of the products of the taxing state 
and against goods brought in from another state, but there 
are other cases which rest upon the broad principle that a 
state cannot impose any tax or other restriction ' ' upon the 
citizens or inhabitants of other states for selling, or seeking 
to sell, their goods in such state before they are introduced 
therein, ' ' ^^ the ground of decision being, that such a tax 
does not subject to taxation goods brought from another 
state in common with the mass of property in the taxing- 
state, but that, on the other hand, such a tax stands as a 
barrier in the way of the manufacturer or merchant of 
another state and hinders him in the introduction of his 
goods into the taxing state.^^ It is no answer to this to 

™ Hinson v. Lott, 8 Wall. 148. 

" M. Co. V. Gage, 100 U. S. 676 ; Emert v. Missouri, 156 id. 296 ; Eash 
V. Farley, 159 id. 263. 

'« Ficklen v. Shelby County Taxing District, 145 U. S. 1. 

" E. B. Co. V. Brister, 179 U. S. 445. 

^"Downham v. Alexandria Council, 10 Wall. 173; Brennan v. Titusville, 
153 U. S. 289 ; Stockard v. Morgan, 185 id. 27. 

«^ Eobbins v. Shelby County Taxing District, 120 U. S. 489, 494. 

^^Asher v. Texas, 128 II. S. 129; Brennan v. Titusville, 153 id. 289; 
N. & W. Ey. V. Sims, 191 id. 441 ; cf. A. S. & W. Co. v. Speed, 192 id. 500. 



THE ORIGINAL PACKAGE DOCTRINE. 93 

say, as Waite, C. J., and Field and Gray, JJ., said,^^ that 
if citizens of other states cannot be taxed in the same way 
for the same business, there will be discrimination against 
the inhabitants of the taxing state and in favour of those 
of other states, for the conclusive reply is that while a state 
may without discrimination tax its domestic trade, it can- 
not, with or without discrimination, tax or otherwise regu- 
late that interstate commerce which has not been termi- 
nated by the merging of its subject in the mass of property 
within the jurisdiction of the taxing state. It must be re- 
membered that, as Bradley, J., said,^* 'Ho carry on inter- 
state commerce is not a franchise or a privilege granted 
by the state ; it is a right which every citizen of the United 
States is entitled to exercise under the Constitution and 
laws of the United States. ' ' 

The original package doctrine. 

51. In Brown v. Maryland,^^ a statute of Maryland re- 
quiring, inter alia, all importers of foreign articles, "by 
bale or package, ' ' to take out a license, was held to conflict 
with the prohibition of state duties upon imports, as well 
as with the federal power of regulating commerce, 
Marshall, C. J., saying ^'^ that ''when the importer has so 
acted upon the thing imported, that it has become incor- 
porated and mixed up with the mass of property in the 
country, it has, perhaps, lost its distinctive character as an 
import, and has become subject to the taxing power of the 
state ; but while remaining the property of the importer, in 
his warehouse, in the original form or package in which it 
was imported, a tax upon it is too plainly a duty upon im- 
ports to escape the prohibition in the Constitution." 

^ Eobbins v. Shelby County Taxing District, 120 U. S. 489, 501. 
«* Crutcher v. Kentucky, 141 U. S. 47, 57. 
*^ 12 Wheat. 419. 
«" P. 441. 



94 THE REGULATION OF COMMERCE. 

Marshall, C. J., also said ^'^ that '^ Congress has a right, not 
only to authorize importation, but also to authorize the 
importer to sell, ' ' but he qualifies this ^^ by his concession 
that the police power ' ' remains, and ought to remain, with 
the states. ' ' It was subsequently held that the prohibition 
of duties upon imports and exports had no reference to 
interstate commerce ; ^^ and the congressional right of au- 
thorization of importation and the consequent right of 
authorization of the sale of imported articles have no 
relevancy to state taxation or to state police control of 
interstate commerce, and, therefore, a state tax upon sales 
at auction was held to be applicable to products of other 
states, even though the articles were sold in their original 
and unbroken packages.^^ It was also held that coal 
brought from another state by vessel, and unladen, was 
subject to state taxation in its port of destination.^^ On 
the other hand, it was held that a state cannot forbid a 
common carrier to bring liquors into the state, and that 
such legislation does not release the carrier from liability 
in damages for his refusal to carry the liquor.^^ It was 
also held that beer brought from another state in barrels 
and in cases was not subject to seizure under a state statute 
prohibiting the sale of intoxicating liquors,^^ the ground of 
decision being that beer is an article of lawful commerce, 
and, as such, entitled, under the commerce clause, to be 
brought into every state, and, so long as it remains in its or- 

"P. 447. 

«^P. 443. 

«' Woodruff V. Parham, 8 WaU. 123; A. S. & W. Co. v. Speed, 192 U. S. 
500. 

""Woodruff V. Parham, 8 WaU. 123. 

»i Brown v. Houston, 114 U. S. 622 ; P. & S. C. Co. v. Bates, 156 id. 577. 

«^ Bowman v. C. & N. W. Ey., 125 U. S. 465. Waite, C. J., and Harlan 
and Gray, JJ., dissented. 

"'Leisy v. Hardin, 135 U. S. 100. Harlan, Gray, and Brewer, JJ., dis- 
sented. 



THE ORIGINAL PACKAGE DOCTRINE. 95 

iginal package, to be free from state control. The doctrine 
of this case was obviously applicable to all importation and 
transportation of intoxicating liquors, and it necessarily 
was a cause of irritation to those people who conscien- 
tiously believe it to be the duty of every government to 
prohibit all traffic in, or use of, such liquors. There natur- 
ally followed an act of Congress,^^ providing ''that all fer- 
mented . . . liquors . . . transported into any state or 
territory or remaining therein for use, consumption, or 
sale or storage therein, shall upon arrival in such state or 
territory be subject to the operation and effect of the laws 
of such state or territory enacted in the exercise of its po- 
lice powers, to the same extent and in the same manner as 
though such liquids or liquors had been produced in such 
state or territory, and shall not be exempt therefrom by 
reason of being introduced therein in original packages or 
otherwise." As the court's ruling in Leisy v. Hardin 
was based upon an affirmation of the constitutional ex- 
emption of articles of interstate commerce from the 
exercise of the state's police power, there was some 
ground for supposing that an act of Congress could not 
confer upon the states any power in the premises, for, 
as Taney, C. J., had said,^^ '4t will hardly be contended 
that an act of Congress can alter the Constitution, and 
confer upon a state a power which the Constitution de- 
clares it shall not possess. And if the grant of power to 
the United States to make regulations of commerce is a 
prohibition to the states to make any regulation upon the 
subject. Congress could no more restore to the states the 
power of which they were thus deprived, than it could 
authorize them to coin money or make paper money a 
tender in the payment of debts, or to do any other act 

^ Act of 8th August, 1890, 26 Stat. 313, c. 728. 
* License Cases, 5 How. 580. 



96 THE REGULATION OF COMMEECE. 

forbidden to them by the Constitution." Nevertheless, 
the court held ^^ that the act was constitutional because it 
was in effect a national regulation of interstate commerce 
in liquors, and because it imparted no power to the states 
not then possessed and simply removed an impediment 
created by the absence of a specific utterance on the part 
of Congress.^'^ It has since been held that under this act 
a state cannot establish a system discriminating ''between 
interstate and domestic commerce in commodities whose 
manufacture and use are not prohibited by its laws. " ^* It 
has also been held that a state may prohibit the sale of 
oleomargarine in imitation of butter, and that the act of 
Congress ^^ defining butter and imposing a tax upon oleo- 
margarine does not authorize transportation and sale in 
violation of such a statute,^ "^^ the ground of decision being 
that the doctrine of Leisy v. Hardin does not justify the 
broad contention that the states are powerless to prevent 
the sale of subjects of commerce, if their sale may cheat 
the people into purchasing something which is wholly dif- 
ferent from that which its condition and appearance 
import. On the other hand, it has been held ^ that oleo- 
margarine, being an article of food and commerce, a state 
statute cannot prohibit its transportation from another 
state and its sale in an original ten-pound package. It 
has also been held ^ that a state may prohibit the sale of 
cigarettes brought in from another state, when the size of 

«' In re Eahrer, 140 IT. S. 545. 

^ Harlan, Gray, and Brewer, JJ., concurred in the judgment, but not in 
all the reasoning of the court. 

«« Scott V. Donald, 165 U. S. 58, 100. 

»» Act of 2d August, 1886, 24 Stat. 209, c. 840. 

i»»Pluinley v. Massachusetts, 155 U. S. 461, Fuller, C. J., and Field and 
Brewer, JJ., dissenting. See also Grossman v. Lurman, 192 U. S. 189. 

^ SchoUenberger v. Pennsylvania, 171 U. S. 1. Harlan and Gray, JJ., dis- 
sented. 

^Austin V. Tennessee, 179 U. S. 343. White, J., concurred, and Fuller, 
C. J., and Brewer, Shiras, and Peckham, JJ., dissented. 



TEANSPOETATION — POLICE EEGULATION". 97 

the original package is such as to indicate an intention to 
sell at retail that which the state in its exercise of the 
police power has forbidden to be sold, Brown, J., saying,^ 
' ' The whole theory of the exemption of the original pack- 
age from the operation of state laws is based upon the 
idea that the property is imported in the ordinary form 
in which from time to time immemorial foreign goods 
have been brought into the country. ' ' 

Transportation— ("aj State regulation in the exercise of 
the police power. 

52. The construction of railways and the consequent 
development of systems of through transportation have 
required the court to consider in many cases the respective 
powers of the United States and of the states in regard to 
transportation. Before railways came into use the then 
ordinary appliances of internal transportation, canals 
and turnpike roads, were regarded as ' ' component parts ' ' 
of ''that immense mass of legislation which embraces 
everything within the territory of a state not surrendered 
to the general government. " * It was subsequently held 
that a state through which the Cumberland road passed 
could not tax coaches carrying the mail or persons travel- 
ing on the coaches in the service of the United States, but 
the exemption from taxation was, in the several judgments 
of the court, based exclusively upon the terms of the con- 
tracts between the United States and the several states 
through which that road ran, as made by the statutes of 
those states authorizing the construction of the road.^ 

Under the later cases a state may, in the exercise of its 
police power, regulate transportation so far as may be 

» p. 359. 

* Gibbons v. Ogden, 9 Wheat. 203, 235. 

^Searight v. Stokes, 3 How. 151; N., M. & Co, -;;. Ohio, iUd. 720; 
Achison v. Huddleson, 12 id. 293. 
7 



98 THE REGULATION OP COMMERCE. 

necessary for the protection, safety, and comfort of its 
citizens, but it may not by such regulations unnecessarily 
impede or obstruct interstate transportation. A state 
could, before the passage of the Interstate Commerce Act, 
require under a penalty all railroads to fix and post their 
rates of fare and freight and not to charge in excess 
therefor.^ A state may regulate the charges of a private 
warehouse for the storage of grain, although that grain be 
stored in the course of interstate transportation.'^ A 
state may fix and enforce maximum rates of fare and 
freight for intrastate transportation on all railways 
within the state, even though the people in other states 
may be indirectly affected thereby.* A state may forbid 
discrimination in transportation within its territory, and 
constitute a commission to revise railway tariffs and to 
enforce the statute, for it is not to be assumed that the 
commission will interfere with interstate transportation.^ 
A state may forbid railways to employ in a position re- 
quiring the use, or discrimination of the form or colour, 
of signals ''any person not having received from a state 
board a certificate of freedom from colour blindness." ^*^ 
A state may require railways to provide separate accom- 
modations for white and coloured persons traveling 
between points within the state.^^ A state may prohibit 
the running of freight trains on Sunday on any railway 
in. the state.^^ A state may require railways to place 

« E. Co. V. Fuller, 17 Wall. 560. 

'■Munn V. Illinois, 94 U. S. 113; Budd v. New York, 143 id. 517; Brass 
V. North Dakota, 153 id. 391. 

* C, B. & Q. E. V. Iowa, 94 II. S. 155 ; Peik v. C. & N. W. Ey., ibid. 164. 
Field and Strong, JJ., dissented in each case. 

« Stone V. F. L. & T. Co., 116 U. S. 307; Stone v. I. C. E., ibid. 347; 
Stone V. N. O. & N. E. E., ibid. 352. 

" N., C. & S. L. Ey. V. Alabama, 128 U. S. 96. 

" L., N. O. & T. Ey. v. Mississippi, 133 U. S. 587. Harlan and Bradley, 
JJ., dissented. C. & O. Ey. v. Kentucky, 179 U. S. 388. 
" Hennington v. Georgia, 163 U. S. 299. 



TRANSPORTATION — POLICE REGULATION. 99 

guard posts in the prolongation of the line of bridge 
trusses so that in case of derailment the posts, and not the 
bridge trusses, shall receive the blow of the derailed loco- 
motive or car,^^ and a state may prohibit the heating of 
passenger cars, other than dining cars, ''by any stove or 
furnace kept inside the car or suspended therefrom."^* 
A state may require all regular passenger trains running 
wholly within the state to stop at all county seats long 
enough to take on and discharge passengers.^ ^ A state 
may forbid a common carrier of passengers to limit its 
liability by contract.^^ A state may forbid a common 
carrier to limit its liability save by an agreement in writ- 
ing signed by the owner of the goods, for such a require- 
ment is the establishment of a rule of evidence, and not a 
regulation of contracts as to interstate transportation.^'^ 
A state may require all railways within the state to stop 
certain of their trains running each way daily, at stations 
in towns containing a specified number of inhabitants and 
to stop for a time sufficient to receive and let off passen- 
gers.^^ A state may require railways receiving freight 
for transportation to a point on a connecting line to be 
liable for damages caused on the connecting line, for the 
railway may lawfully limit its contract of transportation 
to its own line.^^ A state may authorize a municipality to 
prohibit by ordinance the running of any trains within its 
limits at a speed greater than that fixed in the ordinance.^f* 
A state may require intersecting railways to provide 

" N. Y., N. H. & H. E. V. New York, 165 U. S. 628. 
" N, Y., N. H. & H. E. V. New York, supra. 

^'Gladson v. Minnesota, 166 U. S. 427; cf. L. S. & M. S. Ey. v. Ohio, 
173 id. 285; I. C. E. v. Illinois, 163 id. 142, 
^« C, M. & S. P. Ey. V. Solan, 169 U. S. 133. 
" E. & A. E. V. P. T. Co., 169 U. S. 311. 
^« L. S. & M. S. Ey. V. Ohio, 173 U. S. 285. 
» M., K. & T. Ey. V. McCann, 174 U. S. 580. 
="'Erb V. Morasch, 177 U. S. 584. 

LofC. 



100 THE REGULATION OF COMMERCE. 

facilities for transferring cars used in the regular busi- 
ness of their respective lines.^^ A state may provide that 
all railways doing business within the state shall be liable 
in damages to their employees for any negligence of the 
railway's servants.^^ A state may require railways to 
construct and maintain cattle guards and fences under a 
penalty of double damages.^^ A state may authorize the 
recovery from railways of double damages for cattle 
killed or injured at a point where the railway might, but 
did not, fence.^* A state may authorize its railroad com- 
mission to require a railway to erect and maintain sta- 
tions at designated villages.^^ A state may prohibit or 
restrain the sale of wines or liquors imported from foreign 
countries or brought within its territory from another 
state, though introduced in an original package or other- 
wise, or manufactured in the state.^^ A state may pro- 
hibit the sale of an adulterated food product, even though 
it is brought from a foreign country.^" A state may so 
regulate the operation of draw-bridges over navigable 
waters that the traffic on the water and the traffic on the 
land shall be so conducted as to interfere as little as 
possible with each other.^^ A state may grant and con- 
trol the exercise of ferry licenses.^^ A state may estab- 
lish port regulations for its harbours.^^ A state may au- 

^1 W., M. & P. E. V. Jacobson, 179 U. S. 287. 

^M. P. Ey. V. Mackey, 127 U. S. 205. 

^M. P. Ey. V. Humes, 115 U. S. 512. 

^'^M. & S. L. E. V. Beckwith, 129 U. S. 26. 

=^ M. & S. L. E. V. Minnesota, 193 U. S. 53. 

^' The License Cases, 5 How. 504 ; Bartemeyer v. Iowa, 18 Wall. 129 ; 
Beer Co. v. Massachusetts, 97 U. S. 25; Foster v. Kansas, 112 id. 201; 
Mugler V. Kansas, 123 id. 623; Act of 8th August, 1890, 26 Stat. 313, 
c. 728, legislatively limiting the operation of Leisy v. Hardin, 135 TJ. S. 100. 

2^ Crossman v. Lurman, 192 U. S. 189. 

^Escanaba Co. v. Chicago, 107 IT. S. 678. 

^Fanning v. Gregoire, 16 How. 524, 534; Conway v. Taylor, 1 Black, 603. 

^"The James Gray v. The John Fraser, 21 How. 184. 



TRANSPORTATION — POLICE REGULATION. 101 

thorize a municipality to forbid the use of steam power 
by railways within the municipal limits.^^ 

On the other hand, a state, by its police regulations, could 
not, before the passage of the Interstate Commerce Act, 
enforce with respect to interstate transportation, a prohi- 
bition of a charge of the same, or a greater, toll for a 
shorter than for a longer distance in the same direction.^ ^ 
After the passage of the Interstate Commerce Act such a 
regulation was a fortiori beyond the power of the state.^^ 
A state may not require all trains carrying interstate 
passengers to stop at a station where other adequate 
accommodations were furnished by the railway, especially 
where the stoppage of through trains at that station 
requires them to run over a branch line taking them 
several miles out of their direct course.^* A state may 
not require a railway to stop at all county seats, a sufficient 
time to take on or let off passengers, such express trains as 
are run only for the transportation through the state of 
passengers between two points in other states, especially 
when by other trains adequate accommodations are pro- 
vided for all local and through transportation to and from 
each county seat.^^ A state may not require, under a 
penalty, a report to the state authorities of the name and 
occupation of every passenger.^^ A state cannot forbid 
a common carrier to bring into the state intoxicating 

^ E. Co. V. Eichmond, 96 U. S. 521. 

" W., S. L. & P. Ey. v. Illinois, 118 U. S. 557. Waite, C. J., and Bradley 
and Gray, JJ., dissented. 

'^L. & N. E. V. Eubank, 184 U. S. 27. Gray and Brewer, JJ., dissented. 
G., C. & S. F. Ey. V. Hefley, 158 id. 98. 

'*!. C. E. V. Illinois, 163 U. S. 142. 

^G., C, C. & St. L. Ey. v. Illinois, 177 U. S. 514; Gladson v. Minnesota, 
166 id. 427. 

" Sinnot v. Davenport, 22 How. 227 ; Foster v. Davenport, ihid, 244. 
New York v. Miln, 11 Pet. 102, from the judgment in which Marshall, C. J., 
and Story, J,, dissented, though not formally, is practically, overruled. 



101 a THE REGULATION OF COMMERCE. 

liquors.^'^ A state may not regulate rates of transporta- 
tion over a line connecting two points within the state but, 
passing in part through another state.^^ 

While a state has, unless restrained by contract, or 
unless it thereby regulates foreign or interstate commerce, 
the power to fix by legislation transportation charges 
within its jurisdiction, and while the presumption is always 
in favour of the validity of a governmental regulation 
under legislative authority ,^^^ it nevertheless cannot re- 
quire a railway to carry without reward, nor can it so fix 
charges as to take private property without just com- 
pensation, nor without due process of law.^^'' A state can- 
not under pretence of regulating rates require railways to 
carry specified classes of people at rates lower than those 
fixed by law for all classes.^^'^ As the power of fixing rates 
is administrative, it must be exercised by the legislature ^^^ 
and not by the courts,^^^ but it is within the judicial power, 
and it is the judicial duty, to restrain that which in the 
form of regulation operates to deny to the owners of prop- 
erty invested in the conduct of transportation the equal 
protection of the laws.^^^ The courts must, therefore, 
when a proper case is presented, determine whether trans- 
portation charges as fixed by legislative regulation are, 

^' Bowman v. C. & N. W. Ey., 125 U. S. 465. 

=« Hanley v. K. C. S. Ey., 187 U. S. 617. 

=" a C, M. & St. P. Ey. v. Tompkins, 176 U. S. 167, 173. 

"'& Stone V. F. L. & T. Co., 116 U. S. 307; Dow v. Beidelman, 125 id. 
680, 689 ; G. E. & B. Co. v. Smitli, 128 id. 174, 179 ; C, M. & St. P. Ey. v. 
Minnesota, 134 id. 418, 458; C. & G. T. Ey. v. Wellman, 143 id. 339, 344; 
Budd V. New York, Hid. 517, 547. Until Congress otherwise directs, a 
state may regulate the intrastate rates of railways chartered by the United 
States: Smyth v. Ames, 169 U. S. 466; Eeagan v. M. T. Co., 154 id. 413. 

"" c L. S. & M. S. Ey. v. Smith, 173 U. S. 684. 

'^dC. & G. T. Ey. v. Wellman, 143 U. S. 339, 344. 

=' e Eeagan v. P. L. & T. Co., 154 U. S. 362, 399. 

^ f Eeagan v. P. L. & T. Co., supra; St. L. & S. P. Ey. v. GUI, 156 U. S. 
649, 657; C. & L. T. E. Co. v. Sandford, 164 id. 578, 584; C, B. & Q. E. v. 
Chicago, 166 id. 222, 241. 



TEANSPORTATION" — POLICE REGULATIOIT. 101 b 

or are not, so unreasonably low as to deprive the carrier 
of Ms property without just compensation. Yet a railway 
may not fix its rates solely with a view to its own interest 
and ignoring the rights of the public, nor may it fix its 
rates upon any basis other than that of the fair value of 
the property used and the fair value of the services ren- 
dered, or, in other words, a fair return upon the capital in- 
vested.^^^ In this connection Harlan, J., said :^^^ * ' The 
basis of all calculations as to the reasonableness of the 
rates to be charged by a corporation maintaining a high- 
way under legislative sanction must be the fair value of 
the property being used by it for the convenience of the 
public. And in order to ascertain that value, the original 
cost of construction, the amount expended in permanent 
improvements, the amount and market value of its bonds 
and stock, the present as compared with the original cost 
of construction, the probable earning capacity of the prop- 
erty under particular rates prescribed by statute, and the 
sum required to meet operating expenses, are all matters 
for consideration and are to be given such weight as may 
be just and right in each case. We do not say that there 
may not be other matters to be regarded in estimating the 
value of the property. What the company is entitled to 
ask is a fair return upon the value of that which it employs 
for the public convenience. On the other hand, what the 
public is entitled to demand is that no more be exacted 
from it for the use of the public highway than the services 
rendered by it are reasonably worth. ' ' ^^' 

Much misapprehension with regard to the proper 
limits of the exercise of governmental power over 

'" p M. & St. L. Ey. V. Minnesota, 186 U. S. 287. 

^7i Smyth v. Ames, 169 U. S. 466, 546; 171 id. 361. 

^i See also S. D. L. & T. Co. v. National City, 174 U. S. 739, 757; 
Stanislaus County v. S. J. & K. E. C. & I. Co., 192 id. 201 ; S. D. L. & T. Co. 
V. Jasper, 189 id. 439. 



101 C THE KEGULATION OF COMMERCE. 

the railways has resulted from reasoning by analogy, 
for the logical value of that method of reasoning is 
dependent upon an exact similarity in all points between 
the subjects of comparison. It is a truism that railways 
are public highways, and yet it is clear that they are not 
highways in the sense that navigable rivers and roads, 
whether common or improved, are highways. Railways 
differ from those other highways in three important re- 
spects, which deprive the analogy of much of its value. 
In the first place, the railways have in the United States 
been constructed, in almost every instance, not by public 
officers expending the public funds, but by private persons 
under corporate organizations expending private funds 
realized from the sale of corporate bonds or shares, the 
investors taking all the risks, and relying upon the finan- 
cial results of operation under the corporate franchises 
for income and reimbursement of outlay. In the second 
place, the railway is not only an artificial highway, but also 
it can only be used as a highway in connection with arti- 
ficial means of transportation which the railway must 
itself supply and operate. The earlier railways in 
England and in this country were chartered upon the 
theory that the company would provide the road and the 
customers find their several modes of transportation, but 
it was soon discovered that the magnitude, complexity, and 
dangers of the business were too great to admit of its 
conduct in that manner. In the third place, every rail- 
way is a common carrier, and, as such is bound to carry 
at reasonable rates and without unjust discrimination all 
freight and all passengers that may be offered to the extent 
of its facilities. 

If transportation rates could be treated, without refer- 
ence to the public interest, as subjects of private bargain 
between the railway and its customers, it would be lawful 
for the railway on the one hand to demand whatever sum, 



TKANSPOETATIOISr — POLICE REGULATIOE". 101 d 

however exorbitant, that the necessities of its customer 
would compel him to pay, and for the customer, on the 
other hand, to have his goods carried as nearly free as 
possible. But that duty to the public which requires the 
railway to carry all freight at a reasonable rate defines as 
reasonable that rate which not only adequately remuner- 
ates the railway for the transportation of the particular 
freight, but also enables it to carry that freight without 
prejudice to its performance of its duty of transporting 
other classes of freight. In other words, neither the cus- 
tomer, nor the railwaj'', can be permitted to ignore the fact 
that the railway is not a private, but a common carrier, and 
that, therefore, its charges must be fixed with reference to 
its performance of duties to others as well as to the par- 
ticular customer. 

Local freight costs the railways more than through 
freight. By reason of the fluctuation in its demand upon 
the terminal facilities, rolling stock, and labour it involves 
a large outlay in capital and in cost of administration, with 
uncertainty as to the amount of return in any given period. 
It necessitates the frequent transportation of light loads, 
and a consequent loss of income from unused facilities and 
unemployed labour. Its necessary sidings, switches, and 
frogs increase the perils of operation. On the other hand, 
through freight can be transported in full loaded cars, and 
with the minimum of labour, by reason of certainty as to 
the duration of the trip and the demands upon that labour. 

All freight is not of equal bulk or value, nor is it neces- 
sarily received, carried, or delivered in precisely the same 
manner. It may be received and delivered at the station 
and loaded and unloaded by the railway employees ; it may 
be received and delivered at the railway sidings, but 
loaded and unloaded by the consignor or consignee; it 
may be received from and delivered to sidings on private 
premises, and loaded or unloaded there by the consignor 



101 e THE EEGULATION OF COMMEKCE. 

or consignee ; or it may be received in one of these ways 
and delivered in another. So also the stipulated speed of 
transportation may vary. A railway also has to deal 
both with retail and wholesale customers, that is, with 
those who at their option make occasional use of its trans- 
portation facilities, and with others who make a pre- 
arranged regular and constant use of these facilities. 

It is to the interest of both the public and the railways 
that rates should be sufficiently large to yield an adequate 
return for the capital invested, to maintain the plant in a 
condition of efficiency, and to permit the railway to avail 
itself of such improvements as may be, from time to time, 
made in machinery and appliances. The railway plant 
includes not merely the roadbed and main tracks, but 
also the terminal facilities, the way stations, the sidings 
necessary therefor, the rolling stock, and the skilled labour 
upon which devolves the maintenance and operation of 
the road. The traffic must be steady in order that there 
may be no loss from unused machinery and unemployed 
labour. Return freight must be provided in order to avoid 
as far as possible the transportation of empty cars. The 
cost of moving freight varies upon different lines, and 
upon different parts of the same line, in accordance with 
the grades, the more or less expensive character of the 
tunnels, bridges, viaducts, and other engineering appli- 
ances that have been provided to overcome natural ob- 
stacles, and the cost to the railway of its machinery, fuel, 
and labour. The railway manager has, therefore, in fixing 
a rate to determine the cost of moving a given quantity of 
freight of the particular kind over the designated distance 
in the desired manner, and to that end he must consider 
several elements, to each of which due weight must be 
given: first, the extent to which the company's way or 
terminal facilities and labour will be used in handling the 
freight ; second, the necessary demand of that freight upon 



TEANSPOETATION — POLICE REGULATION. 101 / 

motive-power and rolling stock, and the possibility of ob- 
taining a full return freight ; third, the length of the haul 
and the favourable or unfavourable character of the 
grades ; fourth, the degree of expedition required, and the 
consequent accommodation to, or disturbance of, the gen- 
eral traffic arrangements of the road ; fifth, the constant, or 
fluctuating, character of the demands of the particular 
freight upon the road's facilities; and, sixth, the relative 
bulk and value of the freight and the degree of the 
carrier's responsibility for its safe transportation. Rail- 
ways have not been chartered, nor has capital been 
invested in their construction, upon the theory that they 
are to do business for less than cost and a reasonable 
profit upon the investment. The railway manager must, 
therefore, in order that dividends may be earned, add, 
after determining the cost of moving and handling the 
particular freight, such a sum for profit as will, in addi- 
tion to the company's profits from other sources, furnish 
an adequate return for the capital invested. 

When, therefore, government officers undertake to fix 
transportation rates, it is only fair and just that they 
should take into consideration the elements of the problem 
as it would present itself to the mind of an experienced 
and intelligent railway manager. And when the courts 
are called upon to determine the validity of governmental 
regulations as to rates they may properly give weight to 
the same considerations. 

It is true that the sum of the par of the share and 
debt capital of every railway line does not always accur- 
ately express the exact amount of capital invested in the 
line. In some cases, more, or less, of the share capital is 
only water, and even more or less of the debt capital may 
have been issued at a discount. In other cases, and this is 
certainly true of the great trunk lines, the sum of the par 
of the share and debt capital is, by reason of past ex- 



102 THE KEGULATION OF COMMERCE. 

penditure of income in betterments, and, in some cases 
and to large amounts, by reason of issues of addi- 
tional share capital at a premium, very much less than 
the amount actually invested in the line. 

Transportation— (h) Regulation by taxation. 

The United States may, in the exercise of the power to 
regulate commerce, impose a duty payable by shipping 
companies in respect of passengers, not citizens of the 
United States, coming from a foreign port into a port of 
the United States,^^ and such a duty, being an incident of 
the regulation of commerce and not a tax, is not subject 
to the constitution requirement of uniformity, and ' ' it op- 
erates with the same force and effect in every place where 
the subject of it is found." ^^ A state may require a rail- 
way, incorporated by it to construct a line between a point 
in the state and a point without the state, to transport 
passengers for a charge not exceeding a fixed sum, and to 
pay to the state a percentage of the whole amount which 
may be received for the transportation of passengers ; the 
court holding that the payment to the state is not a tax 
upon interstate transportation but a charge for the use of 
improved facilities of transportation which the state, by 
its agent, the railway, has constructed and for whose use 
it has a right to charge.^ ^ A state may impose a tax upon 
the actual cash value of every share of the capital stock 
of a railway incorporated by it even though the railway 
does interstate business.^^ A state may impose on every 

'"Act of 3d August, 1882, 23 Stat. 214; The Head Money Cases, 112 
U. S. 580. 

«• Per MiUer, J., 112 U. S. 594. 

^B. & O. E. V. Maryland, 21 Wall. 456. Miller, J., page 475, dis- 
sented, holding that the state could not raise a revenue from all persons 
going from, or through, the state by railway to a point beyond the state. 
And compare Allen v. P. P. C. Co., 191 TJ. S. 171. 

*= Minot V. P., W. & B. E., The Delaware Eailroad Tax Case, 18 Wall. 206. 



TRANSPORTATION — REGULATION BY TAXATION. 103 

railway operating within the state a franchise tax, to be 
determined in amount by multiplying the average gross 
receipts per mile by the number of miles operated within 
the state, the ground of decision being that the state which 
grants the franchise may annex conditions to its exercise, 
and may measure the value of the franchise by the gross 
receipts earned by operation under that franchise,^^ A 
state may tax the tolls received by a railway chartered by 
another state, but owning a line within the taxing state, 
for the use of such line by another railway.^^ A state may 
tax the capital stock of a car company in the proportion 
that the number of miles run by its cars within the state 
bears to the whole number of miles run by its cars in that 
and other states.^^ A state may require a company doing 
both a domestic and an interstate business to take out a 
license.^^ A state may tax the capital stock of a con- 
solidated corporation chartered by it, and one of whose 
constituent corporations is a foreign corporation.*^ A 
state may tax transportation between two points within 

^ Maine v. G. T. Ey., 142 U. S. 217. Bradley, Harlan, Lamar, and Brown, 
JJ., dissented. A state cannot, upon this principle, tax a corporation 
created by an act of Congress: California v. C. P. E., 127 U. S. 1. And 
a state cannot tax the right of transporting interstate passengers within 
its borders: AUen v. P. P. C. Co., 191 U. S. 171. 

** N. Y., L. E. & W. E. V. Pennsylvania, 158 U. S. 431. 

^ P. P. C. Co. V. Pennsylvania, 141 U. S. 18. (Field, Bradley, and Harlan, 
JJ., dissented, on the ground that the tax was in reality imposed on 
ears which only came within the state in pursuit of commerce, and was, 
therefore, void under the principle of Hays v. P. M. S, Co., 17 How. 596.) 
P. P. C. Co. V. Hayward, 141 U. S. 36 ; C, C, C. & S. L. Ey. v. Backus, 154 
id. 439; A. E. T. Co. v. Hall, 174 id. 70; U. E. T. Co. v. Lynch, 177 
id. 149, And a state, in taxing an express or telegraph company, may 
regard the mileage or property within the state not strictly locally but as 
part of a system operated in several states: A. E. Co. v. Ohio, 165 U. S. 
194, 166 id. 185; A. E. Co. v. Kentucky, Hid. 171; W. U. T. Co. v. 
Missouri, 190 id. 412; cf. Fargo v. Hart, 193 id. 490. 

'° Osborne v. Florida, 164 U. S. 650; P. Co. v. Adams, 189 id. 420. See 
also Allen v. P. P. C. Co., 191 id. 171. 

« Ashley v. Eyan, 153 U. S. 436. 



104 THE REGULATION OF COMMERCE. 

the state but passing in part through another state, the 
tax being "determined in respect of receipts for the pro- 
portion of transportation within the state. " ^* A state 
may impose a privilege tax on the business of a railway 
company in transporting passengers in cabs to and from 
a station within the state.^^ A state may impose a tax 
upon sales at auction of goods which are the product of 
other states, and which are sold in their original and un- 
broken packages, the tax having a uniform application to 
sales at auction within a specified territory, and not dis- 
criminating as against sales at auction of the products of 
other states.^*^ A state may tax coal consigned by a resi- 
dent of another state for sale and afloat in a port of the 
taxing state in the vessel in which it had been trans- 
ported.^^ And a state may tax timber cut in its forests, 
though owned by a resident of another state and deposited 

at a place from whence it is to be shipped to another 
state.^2 

A state may not impose a capitation tax on persons 
leaving the state by railroad, stage coach, or otherwise.^^ 
Curiously enough, this case is referred to in the later judg- 
ments as if it had been decided on the ground taken in 
the dissenting judgment,^^ that the tax was void because 
it imposed "a burden upon commerce among the several 
states, ' ' whereas the judgment of the court was put^^ on 
the ground that a state tax on the interstate transportation 
of passengers is void because it is an interference with the 
freedom of transit of citizens to the seat of government 

*^ L. V. E. V. Pennsylvania, 145 U. S. 192. 

*» New York v. Knight, 192 U. S. 21. 

=" Woodrufe V. Parham, 8 Wall. 123. 

«^ Brown v. Houston, 114 U. S. 622; P. & S. C. Co. v. Bates, 156 id. 577. 

=^ Coe V. Errol, 116 U. S. 517. 

^' Crandall v. Nevada, 6 Wall. 35. 

"By Chase, C. J., and Clifford, J. 

o" By Miller, J. 



TRANSPORTATION — REGULATION BY TAXATION. 105 

and is consequently an infringement upon the federal 
supremacy. A state may not impose, as affecting inter- 
state commerce, a tax on freight.^® A state may not im- 
pose a privilege tax at a fixed rate per car on all cars run 
by railways not owning the cars, so far as affects cars used 
in the transportation of passengers into, through, or out of, 
the state.^^ A state may not, so far as affects interstate 
commerce, tax the gross receipts of corporations engaged 
in the business of running cars over any of the railways of 
the state.^^ A state may not tax the gross receipts of 
the transportation of passengers or goods in interstate 
commerce.^^ A state may not require a railway company, 
being a link in a through line of interstate transportation, 
to pay a license fee for maintaining an office for the sale of 
tickets.^^ A state may not require an agent of an inter- 
state transportation line to pay a license fee for soliciting 
passenger traffic between points in other states ; ^^ nor 
require agents of foreign express companies to take out 
licenses, and satisfy the state authorities that the company 
has an actual capital to the amount fixed in the taxing 
statute.^2 A state may not, directly or indirectly, tax the 
importation of passengers.^^ A state may not impose a 

^« The state Freight Tax, 15 Wall. 232 ; Swayne and Davis, JJ., dissented ; 
E. Ey. V. Pennsylvania, 15 Wall. 282. 

"Pickard v. P. S. C. Co., 117 U. S. 34; Tennessee v. P. S. C. Co., ibid. 
51. See also Allen v. P. P. Co., 191 id. 171. 

'" Fargo V. Michigan, 121 U. S. 230. 

'''P. & S. S. Co. V. Pennsylvania, 122 U. S. 326, overruling the State 
Tax on Eailway Gross Eeceipts, 15 Wall. 284, from the judgment in which 
Miller, Field, and Hunt, JJ., had dissented. 

«° N. & W. E. V. Pennsylvania, 136 U. S. 114. 

^^McCall V. California, 136 U. S. 104; Fuller, C. J., and Brewer and 
Gray, JJ., dissented. 

«' Crutcher v. Kentucky, 141 U. S. 47. 

°' The Passenger Cases, 7 How. 283 ; Taney, C. J., and Daniel, Nelson, 
and Woodbury, JJ., dissented; Henderson v. The Mayor, 92 U. S. 259; 
Chy Lung v. Freeman, Hid. 275; People v. Compagnie Generale Trans- 
atlantique, 107 U. S. 59. 



106 THE EEGULATIOlSr OF COMMERCE. 

stamp duty upon bills of lading for the transportation of 
goods from a port in one state to a port in another.^* 

While a state may tax the property of those persons, 
natural or corporate, who may be by residence subject to 
its jurisdiction, even if that property be invested in ships,®^ 
yet a state may not tax property invested in shipping, 
whose owners are not personally subject to its jurisdiction, 
and which come into its ports in the pursuit of commerce,®" 
and this exemption is not adversely affected by a tempor- 
ary enrollment of a ship in a port of the taxing state.*''^ 
Nor can a state tax shipping as such, when engaged in 
foreign or interstate commerce, though its owners be sub- 
ject to its jurisdiction,®^ for taxation so imposed amounts 
to a regulation of commerce.®^ 

Transportation — (c) The Interstate Commerce Act. 

In the years preceding 1870, the people, recognizing the 
fact that the development of the Middle and Western 
states required, as speedily as possible, improved means of 
communication, facilitated by legislation, and by prodigal 
grants of state and county aid, the organization and con- 
struction of railway lines ; but, in the years following 1870, 
some of the railways having come to regard themselves as 
mere corporations for private gain, and, as such, entitled 
to conduct their business without regard to the public in- 

** Almy V. California, 24 How. 169, as explained by Miller, J., in Wood- 
ruff V. Parham, 8 Wall. 124, 137. 

•*T. Co. V. Wheeling, 99 U. S. 273; W. P. Co. v. East St. Louis, 107 
id. 365. 

""Hays V. P. M. S. Co., 17 How. 596; St. Louis v. W. F. Co., 11 WaU. 
423 ; G. F. Co. v. Pennsylvania, 114 U. S. 196. 

«^ Morgan v. Parham, 16 Wall. 471 ; Act of 18th February, 1793, 11 Stat. 
306. 

«« Moran v. New Orleans, 112 U. S. 69 ; S. S. Co. v. Portwardens, 6 Wall. 
31. 

"•Harman v. Chicago, 147 U. S. 396. 



THE INTERSTATE COMMERCE ACT. 107 

terest, popular feeling was excited, a reaction came, and 
some of the states, and afterwards the United States, 
undertook by legislation to correct the abuses, and enforce 
correct principles, of railway administration. Hence the In- 
terstate Commerce Act and its amendments,"^^ which ap- 
ply to all interstate common carriers, by railroad 
or partly by railroad and partly by water, "under a com- 
mon control, management, or arrangement, for a continu- 
ous carriage;" require all charges to be reasonable and 
just ; forbid unjust and unreasonable charges ; prohibit the 
receipt from any person of "a greater or less compensa- 
tion for any service rendered . . . than that received from 
any other person for a like and contemporaneous service in 
the transportation of a like kind of traffic under substan- 
tially similar circumstances and conditions ; ' ' forbid undue 
or unreasonable preferences or discriminations, either per- 
sonal or local ; require reasonable, proper, and equal facili- 
ties for the interchange of traffic with other lines, and 
forbid discrimination in rates as between connecting lines ; 
forbid the receipt of as great, or "greater compensation 
in the aggregate . . . under substantially similar circum- 
stances and conditions for a shorter than for a longer dis- 
tance over the same line in the same direction, the shorter 
being included within the longer distance, ' ' provided, how- 
ever, that the commission may prescribe the extent to 
which a designated carrier may be relieved from the 
operation of this prohibition; forbid the pooling of 
freights, or division of earnings, by competing lines; 
require publication of foreign and interstate rates ; forbid 

"Act 4th February, 1887, 24 Stat, 379, as amended by Acts of 7th 
August, 1888, 25 Stat. 382 ; 2nd March, 1889, 25 Stat. 855 ; 10th February, 
1891, 26 Stat. 743; 11th February, 1893, 27 Stat. 443; 2nd March, 1893, 
27 Stat. 531; 1st April, 1896, 29 Stat. 85; 8th February, 1895, 28 Stat. 643; 
3d March, 1901, 31 Stat. 1446; 11th February, 1903, 32 Stat. 823; 19th 
February, 1903, 32 Stat. 847; 2nd March, 1903, 32 Stat. 943. 



108 THE REGULATION OF COMMERCE. 

any advance in rates except after ten days ^ public notice ; 
permit reductions in rates after three days ' public notice ; 
forbid all departures from the published rates; require 
schedules of rates to be filed with the commission ; forbid 
combinations to prevent continuous carriage; declare 
carriers to be liable for non-compliance with the acts to 
any person injured thereby in the full amount of damages, 
together with a reasonable counsel or attorney's fee; 
authorize complaint to the commission, or action at law in 
the federal courts by any person injured by a carrier's 
non-compliance with the acts ; provide that no person shall 
be excused from attending and testifying or from produc- 
ing books, etc., on the ground that the testimony, or 
evidence, documentary or otherwise, required of him may 
tend to criminate him, but that no person shall be prose- 
cuted, or subjected to any penalty or forfeiture, on account 
of any transaction, concerning which he may testify, or 
produce evidence, in any such preceding; subject to 
punishment by fine the corporation and all directors, offi- 
cers, or employees violating the act ; create a commission 
of five members, holding office for a limited term, not 
more than three of the members to be appointed from 
the same political party; authorize the commission to in- 
quire into the management and operation of carriers, with 
power to require the attendance and testimony of wit- 
nesses and the production of papers, and to that end to 
invoke the aid of the courts of the United States ; vest juris- 
diction in the commission to examine and to take testimony 
upon complaint made by any person, natural or corporate ; 
authorize the commission to investigate of its own motion ; 
forbid the dismissal of a complaint '' because of the ab- 
sence of direct damages to the complainant;" make the 
findings of the commission prima facie evidence in all 
judicial proceedings ; require the commission, and author- 



THE INTERSTATE COMMERCE ACT. 109 

ize any party interested, in case of the carrier's refusal 
or neglect to obe}^ any lawful order of the commission, to 
apply in a summary way by petition to the courts of the 
United States for relief, and vest jurisdiction thereof in 
such courts, and authorize the court to enter a decree and 
issue process with right of appeal to the appropriate 
federal appellate tribunal; authorize the commission to 
make rules ; fix the principal office of the commission in the 
city of Washington, but authorize it to hold special ses- 
sions, and prosecute inquiries, in any part of the United 
States ; authorize the commission to require reports from 
carriers as to share and debt capital, rates, administration, 
and accidents to passengers or employees; require the 
commission to make annual reports to the Secretary of the 
Interior for transmission to Congress; and provide that 
carriers may carry free, or at reduced rates, goods for the 
United States, and municipal governments, or for charit- 
able purposes, or for exhibition at fairs, etc., and may 
issue mileage, excursion, or commutation passenger 
tickets, or give reduced rates to ministers of religion^ 
municipal governments for the transportation of indigent 
persons, inmates of soldiers' and sailors' homes, officers 
and employees of their own line, and may exchange passes 
and tickets with other lines. Under the act and its amend- 
ments, it has been decided that the Interstate Commerce 
Commission is a body corporate, with power to sue, and 
to be sued, in the federal courts."^ ^ It is not a court, because 
its members do not hold their offices by the tenure of good 
behavior, anti because the duties imposed upon it are not 
judicial in their nature. It is, however, a ''subordinate 
administrative, or executive, tribunal," ^^ and, as such, it 
cannot exercise the legislative power of filing rates in 

'^ T. & p. Ey. V. I. C. C, 162 U. S. 197. 
" I. C. C. V. Brimson, 154 U. S. 447. 



110 THE KEGULATION OF COMMERCE. 

futuro; "^^ nor can it indirectly fix rates by determining 
what would be a reasonable rate, and then obtaining from 
the courts an order restraining a carrier from making in 
futuro a charge in excess of such rates.'^* In actions to 
enforce the orders of the commission an appeal from a 
circuit court now goes, not to the Supreme Court, but to 
the circuit court of appeals J ^ The provision in section 
12 of the act that the commission may ' ' invoke the aid of 
any court of the United States in requiring the attendance 
and testimony of witnesses and the production of books, 
etc.," is not open to constitutional objection upon the 
theory that it imposes upon a judicial tribunal duties which 
are not in their nature judicial."® The commission cannot 
compel obedience to its orders by entering a judgment 
subjecting any person to fine or imprisonment, for the 
power to impose such penalties, in order to compel per- 
formances of a legal duty imposed by the act, can only be 
exercised by a competent judicial tribunal.'^'^ A witness in 
any inquiry by or on behalf of the commission could not, 
before the passage of the Act of 11th February, 1893,"^^ be 
required to answer questions when he stated that his an- 
swers might tend to criminate him ; ^^ but, as that act pro- 
vided that "no person shall be prosecuted or subjected to 
any penalty or forfeiture for or on account of any transac- 
tion . . . concerning which he may testify or produce 
evidence . . . before said commission ... in any such 
case or proceeding" he can now be compelled to answer 

'^ C, N. O. & T. P. Ey. V. I. C. C, 162 U. S. 184; I. C. C. v. C, N. O. & 
T. P. Ey., 167 id. 479 ; Harlan, J., dissented. 

'*I. 0. C. V. A. M. Ey., 168 U. S. 144. 

'' I. C. C. V. A., T. & S. F. E., 149 U. S. 264. 

'= I. C. C. V. Brimson, 154 IT. S. 447. 

"I. C. C. V. Brimson, 154 U. S. 447; Fuller, C. J., and Brewer and 
Jackson, JJ., dissented, and Field, J., did not sit. 

" 27 Stat. 443, c. 83. 

" Counselman v. Hitchcock, 142 U. S. 547. 



THE INTERSTATE COMMERCE ACT. Ill 

notwithstanding the protection afforded by the V Amend- 
ment.^^ There is a continuous carriage of goods within 
the meaning of the act when goods shipped under a 
through bill of lading from a point in one state to a point 
in another state are received in transit and carried ex- 
clusively within a state by a carrier under a pro rata divi- 
sion of the rate, and such intrastate carrier thereby 
subjects itself to the jurisdiction of the commission so far 
as regards such transportation.^^ The pro rata share of a 
through rate may, without unlawful discrimination or 
undue preference, be less than a local rate.*^ Party rate 
tickets, sold at reduced prices for parties of ten or more in 
number, do not constitute undue, or unreasonable, prefer- 
ences in favour of the purchasers thereof, nor unjust, or 
unreasonable, discriminations as against purchasers of 
single tickets.^^ In the absence of a general regulation that 
free cartage from a railway station to the premises of a 
consignee shall be regarded as a part of a terminal service, 
railway transportation must be held to end at the railway 
station, and the furnishing of free cartage to consignees 
in one town, but not in another town, does not constitute 
unjust local discrimination ; *^ but a rebate allowed to a 
consignee to compensate for the cost of cartage from the 
railway station to his premises, when a similar rebate is 
not allowed to another consignee in the same locality, is an 
unjust personal discrimination.^" That an unlawful dis- 
criminating rate was allowed, or a rebate paid, in violation 
of the act, does not prevent liability on the part of the 
carrier for the freight received and covered by insurance 

»" Brown v. Walker, 161 U. S. 591; Shiras, Gray, and White, JJ., dis- 
sented. 

«^ C, N. O. & T. P. Ey. V. I. C. C, 162 U. S. 184. 

»= Parsons v. C. & N. W. Ey., 167 U. S. 447. 

*» I. C. C. V. B. & O. E., 145 TJ. S. 263. 

" I. C. C. V. D., G-. H. & M. Ey., 167 U. S. 633. 

»^ Wight V. U. S., 167 U. S. 512. 



112 THE REGULATION OF COMMERCE. 

in the custody of the carrier's agents.^® The act does not 
in terms authorize competing carriers to enter into con- 
tracts to maintain even reasonable rates.**^ The right of 
recovery given by the statute for an excess of payment 
over a rate charged to another shipper under similar con- 
ditions is in the nature of a penalty, and the plaintiff must 
produce full proof thereof, and must show a pecuniary 
injury to himself resulting from such discrimination.*^ 
Substantial similarity, or dissimilarity, of circumstances 
and conditions is a question of fact, to be proved by evi- 
dence and finding of the commission thereon is only prima 
facie, and is subject to review by the court.*'' Reduced 
through rates from a port of entry to a point within the 
country on goods from abroad, which, except for such re- 
duced rate, would not have come through that port of 
entry, do not constitute an unjust discrimination as 
against traffic originating at that port of entry.^" The 
commission may administratively determine the circum- 
stances and conditions affecting competitive rates, con- 
sidering to that end the legitimate interests of the carrier 
as well as of the shippers, and the legitimate interests of 
the locality to which the goods are to be carried as well as 
of the locality from which the goods are shipped.^^ A 
substantial competition, that is a competition producing 
a substantial and real effect upon traffic and rate making, 
is one of the circumstances constituting substantial dis- 
similarity under the long and short haul clause in sections 
3 and 4 of the act,^^ and which may justify a carrier in 

^' M. C. P. & S. Co. V. Insurance Co. of N. A., 151 U. S. 368. 

"^ U. S. V. T. M. F. A., 166 U. S. 290. 

«« Parsons v. C. & N. W. Ey., 167 U. S. 447. 

«'I. C. C. V. A. M. Ey., 168 U. S. 144. 

^ T. & P. Ey. V. I. C. C, 162 U. S. 197. 

»^ T. & P. Ey. V. I. C. C, 162 U. S. 197. 

*=I. C. C. V. A. M. Ey., 168 U. S. 144; L. & N. E. v. Behlmer, 175 id. 



THE INTERSTATE COMMERCE ACT. 113 

charging a greater compensation for a shorter than for 
a longer haul. 

It was held, before the passage of the Interstate Com- 
merce Act, that a state could require under a penalty all 
railroads to fix and post their rates of fare and freight 
and not to charge in excess therefor,®^ but it was held also 
that a state could not by a police regulation enforce, with 
respect to interstate transportation, a prohibition of a 
charge of the same, or a greater, toll for a shorter than 
for a longer distance in the same direction,^^ and, after 
the passage of the Interstate Commerce Act, it was held 
that such a regulation was a fortiori beyond the power of 
the state,®^ for Congress having enacted its long and short 
haul clause, it was, of course, not lawful for a state to 
legislate on the same subject. When a company owned 
by a railway corporation buys coal at the mines under 
an arrangement alleged to secure preferential rates 
for the vendors, the Interstate Commerce Commission 
may, in a proper proceeding in the circuit court, com- 
pel the testimony of witnesses and the production of 
contracts.*^ 

The cases in the Supreme Court and the reports of the 
Interstate Commerce Commission show that the act of 
1887 has invited much costly and fruitless litigation. 
Nevertheless, the legislation is of value in that it has 
strengthened the hands of those broad-minded railway 
managers who believe that the interests of their share- 



648; E. T., V. & G. Ey. v. I. 0. C, 181 id. 1; I. C. C. v. L. & N. E., 190 
id. 273. 

»'R. Co. V. Fuller, 17 Wall. 560. 

^ W., S. L. & P. Ey. V. Illinois, 118 U. S. 557 ; Waite, C. J., and Bradley 
and Gray, JJ., dissented. 

»=L. & N. E. V. Eubank, 184 U. S. 27; Gray and Brewer, JJ., dissented; 
G., C. & S. F. Ey. V. Hefley, 158 U. S. 98. 

»« I. C. C. V. Baird, 194 U. S. 25. 



114 THE EEGULATION OF COMMERCE. 

holders are best served by fair dealing with customers 
and with competitors. 

The Anti-trust law. 

53. The so-called "trusts" are combinations of corpora- 
tions and properties made, in some cases, by the merger 
and consolidation of existing associations, and, in other 
cases, by the organization of corporations to acquire and 
hold the properties to be consolidated, or the controlling 
interest in the shares of the corporations to be combined. 

The ''trusts" are a necessary result of the growth of 
the country, and of the development of isolated and 
sparsely settled states into a nation whose territory is 
covered by a network of railways, whose trade is that of 
an empire and not that of a village, and whose markets 
have ceased to be local and have become world-wide. 
' ' Trusts" are formed to obtain capital by the sale of bonds 
and shares, to save the waste of competition, to secure in 
production, transportation, and distribution the maximum 
of efficiency at the minimum of cost, to expand trade by 
reducing the price to the consumer, and by economical 
operation to increase the net profit to the producer and 
the carrier. 

It is not surprising that the capitalization of our rail- 
ways, the number of our industrial organizations, and the 
magnitude of their operations should arouse the public 
interest, and should cause on the part of unintelligent peo- 
ple more or less fear as to possible consequences. Every 
great industrial development has excited such fears. The 
steam engine, the railways, and all forms of labour-saving 
appliances, from the spinning jenny to the type-setting 
machine, have seemed, in their turn, to threaten large ad- 
ditions to the ranks of the unemployed, and heavy losses 
to different classes of people; and yet in each case the 
result has been the opening of new avenues to employ- 



THE ANTI-TEITST LAW. 115 

ment, and a substantial advance in civilization. So to- 
day, no one who is accurately informed as to present 
industrial conditions can doubt that, because of American 
financial skill in securing combination of resources and 
concert of action, and because of increased railway effi- 
ciency, the products of industry have been brought to a 
higher standard than ever before, the labour which pro- 
duces them is better paid, the market is wider and is better 
supplied, and the consumer buys upon relatively more 
favourable terms. 

In any legislative regulation of corporations, great or 
small, by the United States, there are only four classes of 
people to be considered. There are, first, the investors in 
the bonds and shares issued by the corporations, that is, 
those who desire to become partners therein, and to par- 
ticipate in their profits, and who, therefore, in so far as 
they may properly be regarded as beneficiaries of legisla- 
tion, can only be aided by the requirement of publicity, 
that is, by compelling the corporation, under proper penal- 
ties, to furnish such information as to its capital, earnings, 
and disbursements as will enable intending purchasers 
and owners to determine whether its financial condition 
be such as to render the purchase or holding of its securi- 
ties a prudent investment. But the federal law can have 
nothing to do with the organization of corporations for 
purposes not directly connected with the exercise by the 
United States of some power of government, nor can the 
United States constitutionally regulate the issue, sale, or 
transfer of the bonds or shares of such corporations, or 
protect investments therein. There are, secondly, the 
business rivals or competitors of the trading 'Hrusts." 
On their behalf complaint is made that those "trusts," in 
order to destroy competition, discriminate in their prices. 
But competition is industrial warfare. You cannot have 



116 THE REGULATION OF COMMERCE. 

a real competition that does not compete to the limit. 
When competition is actively conducted, the seller attains 
his ends, not only by underselling in order to effect a 
particular sale, but also by carrying his underselling to 
the extreme limit of driving his competitors out of busi- 
ness and securing for himself complete control of the 
market. This is done, as Lord Justice Bowen said,^^ from 
'Hhe instinct of self-advancement and self -protection, 
which is the very incentive of all trade. ... To say that 
a man is to trade freely, but that he is to stop short at any 
act which is designed to attract business to his own shop, 
would be a strange and impossible counsel of perfection," 
and to attempt to prohibit it ''would probably be as hope- 
less an endeavour as the experiment of King Canute. ' ' Is 
it proposed that there shall be a general legislative regu- 
lation of prices, and, if so, what would that amount to? 
There are, thirdly, the consumers of the goods manufac- 
tured or sold by the corporations. So far as they are con- 
cerned, it is clear that no act of legislation can effectively 
prescribe the price at which the products of the corpora- 
tions are to be sold, for the simple reason that market 
prices always have been, and always will be, regulated by 
the operation of the law of supply and demand. Success- 
ful commerce buys in the cheapest, and sells in the dear- 
est, market. The seller rightfully seeks the highest price 
that he can obtain ; the buyer, as rightfully, pays as little 
as he possibly can. There are, fourthly, those who or 
whose goods are carried by common carriers, and their 
rights have been adequately regulated and protected by 
the law. 

It is said that the "trusts" have ''a tendency to 
monopoly." The fact is that, except in the cases of 
patents and copyrights, and of those who control the 

"Mogul S. S. Co. V. McGregor, 23 Q. B. Div. 598; (1892), C. A. 43. 



THE ANTI-TRUST LAW. 117 

sole and exclusive source of supply of a natural product, 
it is not possible in this day of the world's history to 
maintain and enforce, more than temporarily, extortion- 
ate prices, for the reason that there is always available a 
large amount of uninvested capital seeking profitable em- 
ployment and keenly watching for opportunities of 
remunerative investment. Therefore, intelligent man- 
agers of a successful business do not advance prices to the 
point at which destructive competition will be invited. 
Prices of commodities are automatically regulated by the 
law of supply and demand. When, by reason of an ap- 
parent permanence of demand and a present inadequacy 
of the means of supply, prices rise to a level that gives a 
reasonable assurance of profit to producers, the surplus 
capital of the world can always be relied upon to augment 
the means of supply. 

Attempts to regulate trade by legislation are not of 
new invention. Whenever and wherever there has been 
an absolute government there have always been attempted 
restrictions upon trade. In mediaeval times it was the 
theory and the practice that it was the "duty and the 
right of the state to fix hours of labour, rates of wages, 
prices, times and places of sale, and quantities to be 
sold. ' ' ^^ The selfish commercial policy of England, in- 
telligently directed to the restraint of colonial trade and 
manufactures, was the great cause of the War of Inde- 
pendence. When the successful revolution had sub- 
stituted the sovereignty of the people for the su- 
premacy of the Crown, there was naturally a jealousy 
of governmental power and a determination to guard 
individual liberty against oppression. The framers of 
the Constitution of the United States, therefore, founded 
the government, not only upon the supremacy of the 

"Mrs. Green, "Town Life in the XV Century." 



118 THE EEGULATION OF COMMEECE. 

federal government in the exercise of tlie powers granted 
to it, but also and equally upon the independence of the 
states and the freedom of the citizen. They foresaw the 
evil effects of an unrestrained exercise of the popular will. 
They endeavoured to establish and make perpetual the 
reign of law. They crystallized into the Constitution the 
great principles of free government, and they made it im- 
possible to hastily change that organic law. They de- 
clared in express terms the supremacy of the Constitution 
and the laws made in pursuance thereof ; and they created 
a Supreme Court whose judgments should give effect to 
that declaration. They united the states into a nation, with 
full powers of government, and they reserved to the in- 
dividual citizen as much freedom as is consistent with the 
enforcement of law and the maintenance of order. Under 
the Constitution, there is no warrant for paternalism in 
congressional legislation. 

It is to the states, and not to the United States, that we 
ought to look for the legislative and administrative regu- 
lation of the industrial organizations of the present and 
the future. The power of the state is ample. A state 
may create corporations, with or without conditions, and 
it may authorize a corporation to do any business which 
an individual may lawfully do. A state may forbid a 
foreign corporation to do business within its territory ; it 
may permit that business on conditions ; and it may, with 
or without reason, revoke a permission theretofore 
granted. It may, therefore, enforce with regard to 
foreign corporations all, and more than all, the restric- 
tions which it enforces with regard to corporations of its 
own creation. On the other hand, the United States, save 
as the domestic government of the District of Columbia 
and the territories, cannot even grant a charter of incor- 
poration, except as a means incidental to the exercise by 



THE ANTI-TRUST LAW. 119 

the United States of a power of government, and it can 
control the operations of a corporation chartered by a 
state only under the power of regulating foreign and 
interstate commerce. It does not avail to say that the 
legislation of a state can have no extra-territorial force, 
and that in order to have a rule of uniform application 
throughout the country there must be congressional legis- 
lation, for the conclusive reply is that every state, under 
the Constitution, is entitled as of right to determine for 
itself by what agencies and under what conditions com- 
modities shall be manufactured or sold within its terri- 
tory, subject only to the paramount right of the United 
States to levy duties and taxes, and to regulate commer- 
cial intercourse. As Fuller, C. J., forcibly said in his 
dissenting judgment in the Lottery Case,®^ ''The scope 
of the commerce clause of the Constitution cannot 
be enlarged because of present views of public 
interest. ' ' 

In the past the country has had to overcome, under con- 
ditions of inadequate transportation facilities, the dis- 
integrating tendencies of the expansion of territory and 
the growth of population, but as the results of the triumph 
of the nation in the suppression of the Rebellion, and the 
development of means of transportation and communica- 
tion, our perils are now those of governmental consolida- 
tion and not those of dissolution. Any legislation which 
conflicts with the American doctrine that all men are equal 
before the law, and that equality of rights implies equality 
of obligations, and that subjects rights of property and 
freedom of contract to administrative control is danger- 
ous in a republic governed by universal suffrage. The 
leaders of public opinion will do well to remember that, as 
Mr. Lecky has said, it is an inexorable condition that all 

"^188 U. S. 373. 



120 THE REGULATION OF COMMERCE. 

'' legislation which seriously diminishes profits, increases 
risks or even unduly multiplies humiliating restrictions, 
will drive capital away and ultimately contract the field 
of employment. " ^^^ 

The first of the congressional anti-trust acts ^ was 
drawn by Senator Hoar,^ and was passed because of some 
unintelligent clamour as to 'Hhe grave evil of the accumu- 
lation in this country of vast fortunes in single hands, or of 
vast properties in the hands of great corporations," an 
alleged evil with which the United States cannot, under 
the Constitution, possibly concern itself. 

The Act of 1890 is entitled ''An Act to Protect Trade 
and Commerce against Unlawful Restraints and Monop- 
olies ; ' ' declares illegal ' ' every contract, combination in the 
form of trust, or otherwise, or conspiracy in restraint of 
trade or commerce among the several states, or territories, 
or with foreign nations ; ' ' and every monopoly, or attempt 
to monopolize any part of such trade or commerce; sub- 
jects to forfeiture, seizure, and condemnation ' ' any prop- 
erty owned under any contract, or by any combination, or 
person, pursuant to any conspiracy," as aforesaid; im- 
poses penalties upon persons disobeying the act; vests 
jurisdiction in the courts of the United States; gives a 
right of action for injury to business or property by 
reason of anything declared unlawful by the act, with 
three-fold damages, costs of suit, and attorney's fee; and 
requires the several district attorneys, under the direction 
of the attorney-general, to institute proceedings in equity 
to prevent and restrain such violations. 

The Act of 11th February, 1903,^ provides that in suits 
brought by the United States under the act precedence 

^•"Democracy and Liberty, Vol. II, page 463. 
1 2nd July, 1890, 26 Stat. 209. 
^ Autobiography of Hon. Geo. F. Hoar, Vol. II, page 363. 

^32 Stat. 823. 



THE ANTI-TRUST LAW. 121 

shall be given, on the filing of a certificate by the attorney- 
general, and the cause be heard before not less than three 
judges of the circuit, and that an appeal from the final 
decree of the circuit court shall lie only to the Supreme 
Court and must be taken within sixty days. The Act of 
14th February, 1903,* creates the Bureau of Corporations 
in the Department of Commerce and Labor, provides for 
the appointment of a commissioner thereof, a deputy com- 
missioner, and clerks; authorizes the commissioner to 
make ^ ' under the direction and control of the Secretary of 
Commerce and Labor, diligent investigation into the or- 
ganization, conduct, and management of the business of 
any corporation, joint stock company, or corporate com- 
bination engaged in the commerce among the several 
states and with foreign nations, excepting common 
carriers subject to" the Interstate Commerce Act, and 
"to gather such information and data as will enable the 
President of the United States to make recommendations 
to Congress for legislation for the regulation of such 
commerce, and to report such data to the President from 
time to time as he shall require; and the information so 
obtained, or as much thereof as the President shall direct, 
shall be made public." The act also confers upon the 
commissioner in respect to the parties subject thereto all 
the powers conferred on the Interstate Commerce Com- 
mission; and makes it "the province and duty" of the 
bureau "to gather, compile, publish, and supply useful in- 
formation concerning corporations doing business within 
the limits of the United States, as shall engage in inter- 
state commerce, or in commerce between the United States 
and any foreign country, including corporations engaged 
in insurance, and to attend to such other duties as may be 
hereafter provided by law." 

* 32 Stat. 825. 



122 THE REGULATION OF COMMERCE. 

The Act of 25th February, 1903,^ appropriates the sum 
of $500,000 to be expended under the direction of the 
attorney-general "in the employment of special counsel 
and agents of the Department of Justice to conduct pro- 
ceedings, suits, and prosecutions" under the anti-trust 
acts. The Act of 3d March, 1903,^ provides for the 
appointment of an assistant to the attorney-general, an 
assistant attorney-general, and two confidential clerks to 
' ' perform such duties as may be required of them by the 
attorney-general. ' ' The first of the statutes only has been 
judicially construed. 

Of course, in every case in which the statute has been 
enforced, it has necessarily been held to be constitutional 
as a regulation of commerce, and not to be open to objec- 
tion on the ground of interference with the freedom of 
contract.'^ In N. S. Co. v. U. S.^ the question of consti- 
tutionality was fully and ably argued, and it was held that 
the statute, when construed to forbid a combination to 
organize a corporation to hold the shares of competing 
railways, is not open to objection as an infringement upon 
the reserved powers of the states, but, in his dissenting 
judgment in that case. White, J.,^ argued with great force, 
that commerce as defined in Gibbons v. Ogden, is commer- 
cial intercourse, and is regulated by prescribing rules for 
carrying on such intercouse, and that the ownership or 
transfer of shares in a corporation created by a state 
cannot be said to be in any sense commercial intercourse, 
and the prescribing of rules governing the ownership of 
such shares cannot fall within the power to prescribe 
rules for regulating commercial intercourse. White, J., 

« 32 Stat. 854. 

« 32 Stat. 1031, 1062. 

' U. S. V. J. T. A., 171 U. S. 505. 

« 193 U. S. 197. 

•Fuller, C. J., and Peckham and Holmes, JJ., concur. 



THE ANTI-TRUST LAW. 123 

also argued that the power to regulate commerce includes 
the power to regulate the instrumentalities of commerce, 
and that means the regulation, not of their acquisition and 
ownership, but of their employment and operation, and 
that because the ownership of property, if acquired, may 
possibly be so used as to burden commerce, it does not 
follow that to acquire and own is to burden. 

Each of the cases also required of the court a construc- 
tion of the statute, and a determination whether or not the 
facts in each case brought it within the statute. The 
general principles which can be deduced from the cases 
are these : 

1. The word "unlawful" in the title of the statute has 
reference only to those contracts which the statute makes 
unlawful, and does not operate to qualify the expression 
of the legislative will in the body of the statute that 
''every" contract in restraint of foreign and interstate 
trade shall be unlawful,^ ° but, in the more recent judg- 
ments of the court, the force of those words has been 
materially qualified by the determination that exclusive 
licenses to manufacture and sell under patents for inven- 
tions are not within the statute, and by Mr. Justice Peck- 
ham 's admissions in the judgments of the court in U. S. 
V. T. M. F. A.,11 in U. S. v. J. T. A.,12 ^nd in Hopkins v. 
U. S.^^ that neither a contract of partnership, nor the 
withdrawal of a competitor from business, nor the ap- 
pointment by competitors of a joint selling agent, nor the 
purchase of an additional plant, nor "the formation of a 
corporation for business or manufacturing purposes, ' ' nor 
an agreement collateral to a contract of sale, and requir- 
ing the competitor to abstain from again entering into the 

^"U. S. V. J. T. A., 171 U. S. 505. 
" 166 U. S. 290. 
^"- 171 U. S. 505. 
"171 U. S. 578. 
9 



124 THE REGULATION OF COMMERCE. 

business within a designated territory and during a 
specified time, are within the prohibition of the statute. 
These conceded exceptions from the prohibitions of a 
statute, which expresses no exceptions, would seem to 
destroy the inclusive force claimed for the words ''every" 
and ' ' otherwise. ' ' 

2. The term ' ' contracts in restraint of trade, ' ' as used 
in the statute, includes, without regard to their reason- 
ableness or unreasonableness, ''all kinds of those con- 
tracts which in fact restrain, or may restrain, trade. "^^ 
In so deciding, the court did not follow the modern and 
well considered judgments in the state courts and in the 
courts of England. The doctrine of contracts in restraint 
of trade is not of recent discovery. Holmes, J.,^^ points 
out that contracts in restraint of trade, as defined by the 
common law, are contracts with a stranger to the con- 
tractor's business, and which wholly or partially restrain 
the freedom of the contractor in carrying on that busi- 
ness ; and that combinations or conspiracies in restraint of 
trade, as defined by the common law, are arrangements 
to keep strangers to the agreement out of the business, and 
which tend to monopolize some portion of the trade of the 
country. Such contracts were originally held void at 
common law, because of the injury to the public, by its 
deprivation of the results of the restricted individual's 
industry, and because of the injury to the individual by 
his deprivation of the opportunity to labour for himself 
and for those who might be dependent upon him. Under 
the conditions of trade in the time of the Year Books any 
restraint of trade was an unlawful restraint, but under 
modern conditions the test of invalidity is the unreason- 
ableness of the restraint, for, as Mr. Justice Peckham 

" U. S. V. J. T. A., 171 IJ. S. 505. 

^' In his dissenting judgment in N. S. Co. v. U. S., 193 U. S. 197, 400. 



THE ANTI-TRUST LAW. 125 

said when he sat in the Court of Appeals of New York,^^ 
"An agreement would not," necessarily, ''be in restraint 
of trade, although its direct effect might be to restrain 
to some extent the trade which had been done." The 
overwhelming current of authority supports this view. 
Brewer, J., in his concurring judgment in N. S. Co. v. U. 
S.^'^ holds that while the court had rightly decided the prior 
cases under the statute, because the contracts in all those 
cases were, in his opinion, in unreasonable restraint of 
trade, yet, nevertheless, the statute was not intended, and 
should not be construed, to prohibit contracts in partial or 
reasonable restraint of trade. 

3. If it were not for the judgment in N. S. Co. v. U. S.^® 
it might be regarded as authoritatively determined, that 
''there must be some direct and immediate effect upon 
interstate commerce in order to come within the act."^^ 
Upon that principle all the cases, other than that of N. S. 
Co. V. U. S., can be reconciled. 

4. A direct,^*' or indirect,^^ restraint of railway compe- 
tition in interstate commerce is within the statute, which, 
although a general statute, repeals pro tanto by implica- 
tion the Interstate Commerce Acts,^^ which forbid unjust 
and unreasonable charges by railway carriers, which re- 
quire public notice of increases or reductions in rates, 
which forbid secret or preferential rates and which, there- 
fore, prohibit effective railway competition.^^ 

5. A state cannot, in respect of its ownership of public 

^o Matthew v. A. P. of N. Y., 136 N. Y. 333. 

"193 U. S. 357. 

^» 193 U. S. 197. 

"Per Peckham, J., in Hopkins v. U. S., 171 U. S. 578, 592. 

^U. S. V. T. M. P. A., 166 U. S. 290; U. S. v. J. T. A., 171 id. 505. 

^ K S. Co. V. U. S., 193 U. S. 393. 

''^Act 4th February, 1887, 24 Stat. 379, c. 104, and its supplements, 
supra, Section 49. 

^ See the dissenting judgment of White, J., in U. S. v. T. M. F. A., 166 
U. S. 357 et seq. 



126 THE KEGULATION OF COMMERCE. 

lands and its maintenance of public institutions, and the 
possibilities of depreciation in the value of such lands, 
and of increase in the cost of maintaining such institu- 
tions, by reason of the possibility of a diminution of com- 
petition between railways, sue in a federal court under 
the statute to enjoin the organization of a corporation to 
hold the majorities of the shares of such railways, for the 
possibility of such damage to the state is too remote and 
indirect and is not the direct actual injury contemplated 
by the statute.^* 

6. A combination illegally formed in violation of the 
statute is not precluded from recovering the purchase 
price of goods sold by it, nor can its vendee set off the 
threefold damages under the statute, for the liability 
therefor is only enf orcible by a direct action.^^ Neverthe- 
less, any one sued upon a contract may set up as a 
defence that that contract is a violation of the statute, and, 
if found to be so, that fact will constitute a good defence 
to the action.^® 

Logically, a combination of labour is as clearly subject 
to the statute as a combination of capital.^^ The labour 
unions reasonably restrain trade, when they combine to 
sell a certain minimum of labour for not less than a 
certain price, but they unreasonably restrain trade when, 
in order to effect their purpose, they use threats and force 
to prevent employers from securing labour not provided 
by members of the union. In the absence of an express 
and unfulfilled contract of service, it is the legal right of 
every man to refuse to work, but it is neither the legal nor 

^ Minnesota v. N. S. Co., 194 U. S. 48. 

=^ Connolly v. U. S. P. Co., 184 U. S. 540. 

=° Bement v. N. H. Co., 186 U. S. 70, 88. 

-^7ra re Debs, 64 Fed. 724, 745, 755, 158 IT. S. 564. See "The Law of 
Contracts in Eestraint of Trade, with Special Eeferenee to Trusts," by 
George Stuart Patterson, Esq. 



THE ANTI-TRUST LAW. 127 

the moral right of any man to hinder other men from 
working. 

In each case decided under the statute the judgment of 
the court was based upon a construction of the agreement 
of combination, and upon a consideration of the possibili- 
ties of action thereunder, without any reference to that 
which the parties had done, or probably would do, there- 
under. 

The statute has been construed to forbid : 

1. An agreement by several corporations organized 
under the laws of different states and engaged in the 
manufacture, interstate transportation, and sale of a com- 
modity, to abstain from competition as between them- 
selves within a designated territory, including more than 
one state.^® 

2. An agreement by members of an unincorporated 
association of manufacturers of, and dealers in, a com- 
modity, doing business in several states not to sell to non- 
members save at a price in excess of that at which the 
members sell to each other.^^ 

3. Agreements by competing railway corporations for 
the maintenance of uniform rates upon interstate traffic.^*^ 

4. A combination by several persons whereby a holding 
corporation is organized under the laws of a state to 
acquire and hold the majorities of the shares of two rail- 
ways organized under the laws of other states and there- 
tofore competing in interstate traffic,^^ the ground of de- 
cision being that the common corporate ownership of the 

=» A. p. & S. Co. V. U. S., 175 U. S. 211. 

^» Montague v. Lowry, 193 U. S. 38. 

'"U. S. V. T. M. F. A., 166 TJ. S. 290; Gray, Shiras, and White, JJ., 
dissented; U. S. v. J. T. A., 171 id. 505; Gray, Shiras and White, JJ., 
dissented, and McKenna, J., did not sit. 

*^N. S. Co. V. U. S. 193 TJ. S. 197; Harlan, Brown, McKenna, and Day, 
JJ., concurred in the judgment read by Harlan, J., and Brewer, J., con- 
curred in the decree, but did not concur in all the reasoning of Harlan, 
J.; Fuller, C. J., and Peckham, White, and Holmes, JJ., dissented. 



128 THE KEGULATION OF COMMEECE. 

shares will prevent competition between those railways, 
and that the statute forbids the formation and operation 
by whatever means of a combination which possibly may 
prevent such competition. 

On the other hand the statute has been construed not to 
forbid : 

1. Exclusive licenses to manufacture and sell under 
patents for inventions, for a patent is necessarily a 
monopoly and a patentee's protection is valueless if he 
cannot fix prices and restrain competition.^^ 

2. The organization of a corporation for the purchase, 
manufacture, and sale of a commodity throughout the 
United States and the acquisition and ownership by that 
corporation of all, save one, of the manufactories of that 
commodity in the United States,^^ the ground of decision 
being, not that the case as presented was simply that of 
a combination of factories, but that the case was that of 
the vesting in one agency the ownership of, and the control 
over, theretofore separated instrumentalities of interstate 
commerce; that the possible abstention of those instru- 
mentalities from competition could only be regarded as 
incidental to the exercise of lawful rights of purchase, 
sale, and ownership ; and that the combination, therefore, 
lacked that direct and immediate effect upon interstate 
commerce which there should be in order to bring it within 
the statute. 

3. An agreement by local sellers upon commission 
fixing their rates of commission, regulating competition as 
between themselves, forbidding purchases from non- 
members, and forbidding the transaction of any business 
with suspended members.^* 

»^ Bement v. N. H. Co., 186 U. S. 70 ; Harlan, Gray, and White, JJ., did 
not sit in this case. 

*' U. S. V. E. C. Knight Co., 156 V. S. 1. Harlan, J., dissented. 

^* Hopkins v. U. S., 171 U. S. 578 ; Anderson v. U. S., iUd. 604. Harlan, 



THE ANTI-TRUST LAW. 129 

In deciding upon the possible effect of the agreements 
and acts of combination in the three railway cases^^ and in 
holding that they restrained trade because they checked 
competition, the court made the mistake of not properly 
appreciating the essential differences which distinguish 
competition between common carriers from competition 
between sellers of goods. A railway company, like all 
other common carriers, is bound to carry all freight that 
may be offered, to the extent of its facilities, at reasonable 
rates, and without unjust discrimination, either personal 
or local, and it is legally compellable to refund any over- 
charge in excess of that which shall be adjudged to be 
reasonable ; and the Interstate Commerce Act ^^ has made 
this rule of the common law obligatory upon all carriers 
engaged in interstate commerce. On the other hand, 
buyers of goods may lawfully buy at the lowest price and 
sellers of goods may lawfully sell at the highest price. In 
railway rates it is to the interest of the public that there 
should be uniformity, in order that all shippers may have 
equal advantages; stability, in order that all buyers and 
sellers may correctly estimate the cost of transportation 
as affecting market prices ; and adequacy of compensation 
to the carrier, in order that the carrier may receive that 
which, in the words of the court,^'^ ''the services rendered 
are reasonably worth. ' ' 

Before the enactment of the statute of 1890 the Inter- 
state Commerce Act, as amended by the Act of 2d March, 



J., dissented in both cases. In the first ease it was held to be an immaterial 
circumstance that the local market was situated partly in one state and 
partly in another state. In the last case the facts differed only in that the 
parties to the agreement were pm'chasers of property upon their own 
account. 

^ U. S. V. T. M. F. A., U. S. V. J. T. A., and N. S. Co. v. U. S. 

=" 4th February, 1887, 24 Stat. 379, c. 104. 

" Smyth V. Ames, 169 U. S. 466. 



130 THE EEGULATION OF COMMERCE. 

1889,^^ had forbidden an advance of railway rates, '^ ex- 
cept after ten days' public notice," and had permitted 
reductions in rates only ' ' after three days ' public notice. ' ' 
The Act of 19th February, 1903,^^ passed after the enact- 
ment of the statute of 1890, declared it to be a misde- 
meanor for any carrier subject to the Interstate Com- 
merce acts to fail to obey those acts. Therefore, as well 
after as before the enactment of the Anti-trust statute, any 
real competition between railways was forbidden by legis- 
lation, for as a carrier can take no business away from a 
competitor by a reduction in an open rate, of which three 
days' public notice must be given, the only way to get 
business by reducing the rates is to give that reduction 
secretly to the customer whose traffic is to be secured. The 
Anti-trust statute, as construed by the court, says that 
railway competition must be unrestrained. The Inter- 
state Commerce acts say that railways must not do those 
acts which are essential to any effective competition. 

Uncontrolled competition in transportation inevitably 
produces evils which the country has often experienced. 
A war of railway rates necessarily forces a diminution of 
that liberality of railway expenditure which benefits the 
manufacturer, the dealer, and the labouring man. Such a 
war may result also in the bankruptcy of weaker com- 
panies, in costly receiverships, and reorganizations, and 
in absorption by stronger rivals. When competition is 
unrestrained the power of fixing rates is necessarily 
vested in the company which receives the goods from the 
shipper, and that power is inevitably delegated to irre- 
sponsible subordinates, to whom their road's need of 
business is all-important. From this it follows, that not 
only do the carriers fail to receive under such conditions 

^^25 Stat. 855. 
^'32 Stat. 847. 



THE ANTI-TEUST LAW. 131 

the advantages of adequate compensation, but also the 
shippers and the public lose the benefits of uniformity and 
stability of rates. Uncontrolled competition, therefore, 
injures, instead of benefits, the public interest. While 
some judges have been captivated by the supposed advan- 
tages of unrestricted competition among carriers, other 
and equally eminent judges, and as competent observers, 
have detected the fallacy in the reasoning, and have 
pointed out the danger."*" There are limits to legislation. 
Acts of Congress cannot control either the laws of nature 
or the laws of trade. As the statute, judicially construed, 
forbids treaties of peace between warring lines and con- 
solidations of conflicting railway interests, some other way 
will be found, in the interest of the public, to accomplish 
the desired result. 

It is difficult to reconcile the case of N. S. Co. v. U. S.*^ 
with the case of U. S. v. E. C. Knight Co.^^ Obviously a 
statutory prohibition of ' ' every ' ' restraint of trade cannot 
be so construed as to permit mercantile, and forbid trans- 
portation, restraints of trade. In each of those cases the 
controlling fact is that there is vested in one agency the 
ownership of, and control over, instrumentalities of inter- 
state commerce, and, if there be a resultant restraint of 
trade, that result follows, not because of any agreement to 
abstain from competition, but only because such absten- 
tion may possibly follow the exercise of legal rights of 
purchase, sale and ownership.^^ 

The result in N. S. Co. v. U. S.^* seems to be open to 
two further objections, which do not appear to be met by 

«Hare v. L. & N. E., 2 J. & H. Cli. 80, 103; M. & L. E. v. C. E., 66 
N. H. 100. See Eeport XIV of the Interstate Commerce Commission. 
*^193 U. S. 197. 
*^ 156 U. S. 1. 

« See the view of Holmes, J., 193 U. S. 405. 
" 193 U. S. 197. 



132 THE REGULATION OF COMMERCE. 

anything in the judgment of the court, as read by Harlan, 
J., or in the concurring judgment of Brewer, J. 

1. The act, as construed in the T. M. F. A. and J. T. A. 
cases, forbids railways to agree not to compete, but it does 
not forbid non-competition in the absence of agreement. 
As well after as before the act, railways were, and are, 
bound in law to carry all passengers and freight that may 
be offered, to the extent of their facilities, at reasonable 
rates, and without unjust discrimination, either personal 
or local; and if the managers of any railway, while ob- 
serving those requirements, charge the same rates as are 
charged by other railways under like conditions, but 
without entering into any agreement to that effect, they 
violate no law. If it be not unlawful for two railway 
companies owned by different shareholders to abstain 
from competition, it cannot be unlawful for two railway 
companies owned by one body of shareholders to similarly 
abstain. The fact of common ownership, therefore, is not 
in itself a restraint of trade, nor does it give rise to a 
presumption that any restraint of trade will be committed. 
How can it then be unlawful to organize a holding com- 
pany to acquire the shares of two operating companies I 

If it be said that the organization of the holding cor- 
poration is only a means to the end of so unifying the 
management of the operating companies as to prevent any 
possibility of competition as between those companies and 
that the organization is therefore a fraud upon the statute, 
the answer is that which the court, speaking by Mr. Justice 
Hunt, gave*^ in a case where the question was as to the 
validity of that which was alleged to be a device to avoid 
the payment of a stamp duty; for in that case the court 
said ^'if the device is carried out by the means of legal 
forms, it is subject to no legal censure." 

«U. S. V. Isham, 17 Wall. 506. 



TELEGEAPHS. 133 

2. In tiie case, there is neither contract, combination, 
nor conspiracy between the operating companies, but there 
is an organization of a holding company by shareholders 
of the operating companies, and, by force of that organiza- 
tion, the holding company becomes the majority share- 
holder of both operating companies. While the rights of 
the shareholders of a corporation entitle them to elect its 
directors, and to participate in net profits, when declared, 
and, upon dissolution, in net assets, those rights, neverthe- 
less, do not give any power of direct corporate manage- 
ment. A corporation is a legal entity distinguishable 
from the body of its shareholders. It can act only by its 
officers and agents, and its shareholders are neither its 
officers nor agents. An agreement signed by every share- 
holder will not bind the corporation. If an express agree- 
ment of shareholders of the operating companies be not 
effective, how can effect be given to a sale and transfer 
of shares as legal evidence of presumptive corporate 
action ? 

Telegraphs. 

54. Congress has authorized ^^ any telegraph company 
organized under the laws of any state ''to construct, main- 
tain, and operate lines of telegraph through and over any 
portion of the public domain of the United States, over 
and along any of the military or post roads ^'^ of the 
United States which have been or may hereafter be de- 
clared such by act of Congress, and over, under, or 
across, the navigable streams or waters of the United 
States" upon certain conditions, including priority to 
government messages, a reservation of the privilege of 



*^ Act of 24th July, 1866, 14 Stat. 221 ; Eev. Stat. 5263, etc. 
*^ Congress, by Act of 8th June, 1872, c. 335, 17 Stat. 308; Eev. Stat. 
3964, declared all railway lines in the United States to be post roads. 



134 THE REGULATION OF COMMERCE. 

purchase by the government, and the written acceptance 
by the company of the restrictions and obligation of the 
act.''^ Under this legislation it has been decided that a 
state may require telegraph companies to receive on pay- 
ment of their charges messages to be transmitted to points 
in other states, and to deliver messages with due dili- 
gence.^^ A state may require a telegraph company doing- 
interstate business to pay to the municipality a rental for 
the use of public highways by its poles.^^ A state may 
tax the property owned by a telegraph company within the 
state.^^ A state may require from a telegraph company 
payment of a license tax on business done within the state 
by the company, though it also carries on an interstate 
business.^^ 

A state may not, as against the privileges conferred by 
the United States,^^ vest an exclusive monopoly in one 
telegraph company.^* A state may not tax messages sent 
to points without the state, nor messages sent by officers 
of the United States on public business.^^ A state may 
not, as affecting delivery in other states of messages 
from points within the state, require delivery by special 
messengers.^® A state may not require a license for the 

*^ This act does not apply to telephone companies : Eichmond v. S. B. T. 
Co., 174 U. S. 761. 

*'W. U. T. Co. V. James, 162 U. S. 650. 

=» St. Louis V. W. U. T. Co., 148 U. S. 92 ; P. T. C. Co. v. Baltimore, 156 
id. 210. See also W. U. T. Co. v. New Hope, 187 id. 419; but cf. 
A. & P. T. Co. V. Philadelphia, 190 id. 160; P. T. C. Co. v. New Hope, 
192 id. 55; P. T. C. Co. v. Taylor, iUd. 64. 

"Massachusetts v. W. U. T. Co., 141 U. S. 40; P. T. Co. v. Adams, 155 
ia. 688; W. U. T. Co. v. Taggart, 163 id. 1; W. U. T. Co. v. Missouri, 
190 id. 412. 

'^ Eatterman v. W. U. T. Co., 127 U. S. 411 ; P. T. C. Co. v. Charleston, 
153 id. 692. 

'^'Eev. Stat., sec. 5263, etc. 

"P. T. Co. V. W. U. T. Co., 96 U. S. 1. 

•^ W. U. T. Co. V. Texas, 105 U. S. 460. 

^« W. U. T. Co. V. Pendleton, 122 U. S. 347. 



COMMERCE WITH THE INDIAN" TRIBES. 135 

privilege of doing interstate bnsiness.^'^ A state may not 
prohibit, until all state taxes have been paid by it, the 
doing of business by a corporation which has accepted the 
privileges granted by the act of Congress.^^ 

Commerce with the Indian tribes. 

55. The Indian tribes are not foreign but domestic 
and dependent nations ; their relation to the United States 
resembles that of a ward to his guardian; and they are 
completely under the sovereignty and dominion of the 
United States. They, therefore, cannot sue in the courts 
of the United States as foreign states.^^ The regulation 
of the relation between the several states and the Indian 
tribes is exclusively vested in the United States, and state 
laws cannot operate within an Indian reservation.®" 
Congress, under the power to regulate commerce with the 
Indian tribes, may grant to a railroad corporation a right 
of way through their lands.*^^ It may also forbid the 
sale of spirituous liquors to all persons belonging to 
Indian tribes within the territorial limits of a state, even 
outside the bounds of an Indian reservation,*^^ and it is 
competent for the United States, in the exercise of the 
treaty-making power, to stipulate in a treaty with an 
Indian tribe, that the introduction and sale of spirituous 
liquors shall be prohibited within certain territories ceded 
by the tribe to the United States, and such stipulation 
operates propria vigore, and is binding though the ceded 

" Leloup V. Port of Mobile, 127 U. S. 640 (overruling Osborne v. Mobile, 
16 Wall. 479) ; W. U. T. Co. v. Alabama, 132 U. S. 472. 

=' W. U. T. Co. V. Massachusetts, 125 U. S. 530. 

°* Cherokee Nation v. Georgia, 5 Pet. 1; Worcester v. Georgia, 6 id. 
515; Cherokee Nation v. S. K. Ey., 135 U. S. 641. 

*" Worcester v. Georgia, 6 Pet. 515. 

" Cherokee Nation v. S. K. Ey., 135 U. S. 641. 

•'^U. S. V. Holliday; U. S. v. Haas, 3 Wall. 407. 



136 THE REGULATION OF COMMERCE. 

territory be within the limits of an organized county of 
one of the United States.^^ 

«» U. S. V. Forty-three Gallons of Whiskey, 93 U. S. 188. As to the term 
"Indian country," see Ex parte Crow Dog, 109 U. S. 556; U. S. v. Le 
Bris, 121 id. 278. The subject of the exercise by the states of their 
powers of taxation, and of police regulation, as affecting commerce, is 
more fully treated in other chapters of this book. 



CHAPTEE V. 

THE IMPAIEMENT OF THE OBLIGATION OF CONTEACTS. 

56. The prohibition affects only state laws. 

57. The term "law" defined. 

58. Judgments of state courts not conclusive either as to the non-existence 

or non-impairment of contracts. 

59. The obligation of a contract defined. 

60. Legislation as to remedies. 

61. The term "contracts" defined. 

62. State insolvent laws. 

63. Judgments as contracts. 

64. Municipal taxation. 

65. History of the prohibition, 

66. State grants. 

67. Express contracts of exemption from taxation. 

68. Express grants of peculiar privileges. 

69. Contracts between a state and its political subdivisions. 

70. Implied contracts in charters of incorporation. 

71. Implied corporate exemption from taxation. 

72. Implied grants of peculiar privileges. 

73. Exemption from the operation of the police power. 

74. Contracts as to matters of public concern. 

75. The withdrawal by a state of its consent to be sued. 

76. The force and effect of the prohibition as construed by the Supreme 

Court. 

The prohibition affects only state laws. 

56. Section 10 of Article I of the Constitution declares 
that ''no state shall . . . pass any . . . law impairing the 
obligation of contracts." This prohibition does not in 
terms affect the exercise of legislative power by the gov- 
ernment of the United States, and not only is there not in 
the Constitution any similar prohibition with regard to 
the United States, but by the grant of power to Congress, 
"to establish . . . uniform laws on the subject of bank- 
ruptcies throughout the United States, ' ' ^ authority is ex- 

^ Article I, Section 9. 

137 



138 IMPAIEMENT OF CONTBACTS. 

pressly conferred to impair the obligation of contracts 
between debtors and creditors ; ^ and under the doctrine of 
the implied powers, as construed by the court, Congress 
may impair the obligation of contracts by authorizing the 
issue of notes which shall be a legal tender in satisfaction 
of antecedently contracted debts.^ The constitutional 
prohibition is likewise inoperative with regard to the acts 
of any political organization which at the time of the 
adoption of the act in question is not one of the United 
States ; thus, the Constitution having, under the resolution 
of the Convention of 1787 and the Act of Congress of 
February, 1788, gone into effect on the first Wednesday 
of March, 1789, a statute enacted by the state of Virginia 
in 1788 was not affected by the constitutional prohibition.* 
So, also, a statute enacted by the republic of Texas before 
its admission into the United States as the state of Texas 
could not be held to be void for repugnancy to this clause 
of the Constitution.^ 

The term "law" defined. 

57. The prohibition of the passage by a state of any 
"law impairing the obligation of contracts," would, if 
strictly construed, include under the word "law" only 
statutes enacted by state legislatures, but it has been 
determined that the word ' ' law ' ' comprehends, in addition 
to acts of legislation, state constitutions and constitutional 
amendments ; ^ judicial decisions of state courts of last 

- Sturges V. Crowninshield, 4 Wheat. 122, 194. See also Hanover Nat. 
Bank v. Moyses, 186 U. S. 181, 188; 30 Stat. 544, c. 541; 32 Stat. 797, c. 487. 

^ Supra, Chap. II. 

* Owings V. Speed, 5 Wheat. 420. 

■* League v. De Young, 11 How. 185, 203. See also Scott v. Jones, 5 
How. 343, 378. 

•E. Co. V. McClure, 10 Wall. 511; White v. Hart, 13 id. 646; Gunn v. 
Barry, 15 id. 610; County of Moultrie v. Koekingham T. C. S. Bank, 
92 U. S. 631; Edwards v. Kearzey, 96 id. 595; Keith v. Clark, 97 id. 454; 
N. O. G. Co. V. L. L. Co., 115 id. 650; Fisk v. Jefferson Police Jury, 



THE TERM '^LAW''^ DEFINED. 139 

resort, rendered subsequently to the making of the con- 
tract in question, and antecedently to the suit in which the 
court determines the invalidity of the contract, and alter- 
ing by construction the constitution and statutes of the 
state in force when the contract was made ; " and, in gen- 
eral, any act or order, from whatever source emanating, 
to which a state, by its enforcement thereof, gives the 
force of a law ; as, for instance, a by-law or ordinance of a 
municipal corporation,^ or a statute enacted by the con- 
gress of the Confederacy, and enforced during the war 
of the rebellion by a court of a state within the insurgent 
lines.^ Obviously the law, which is alleged to have im- 
paired the obligation of the contract must have been 
enacted subsequently to the making of the contract, for a 
law enacted antecedently to the making of the contract 
can be said to have entered into, and become part of, the 
contract.^" The judgment of the state court in the cause, 

116 id. 131; Shreveport v. Cole, 129 id. 36; Bier v. Mcaehee, 148 id. 
137; Hanford v. Davies, 168 id. 273; H. & T. C. Ey. v. Texas, 170 id. 243. 

■^ Gelpcke v. Dubuque, 1 Wall. 175 ; Havemeyer v. Iowa County, 3 
id. 294; Chicago v. Sheldon, 9 id. 50; The City v. Lamson, iMd. 477; 
Olcott V. The Supervisors, 16 id. 678; Douglass v. County of Pike, 101 
U. S. 677; County of Ealls v. Douglass, 105 id. 728; Pleasant Town- 
ship V. A. L. I. Co., 138 id. 67; Loeb v. Columbia Township Trustees, 
179 id. 472, 492; Wilkes County v. Coler, 180 id. 506. This doctrine 
was first suggested by Taney, C. J., who said, in O. L. I. & T. Co. v. Debolt, 
16 How. 432 : " The sound and true rule is, that if the contract when made 
was valid by the laws of the state, as then expounded by all the departments 
of its government and administered in its courts of justice, its validity 
and obligation cannot be impaired by any subsequent act of the legislature 
of the state or decision of its courts, altering the construction of the law ; ' ' 
and in Gelpcke v. Dubuque, 1 Wall. 206, Swayne, J., quoted the dictum of 
Taney, C. J., and declared it to be "the law of this court." 

^ WaUa Walla v. W. W. W. Co., 172 U. S. 1 ; St. P. G. L. Co. v. St. Paul, 
181 id. 142 ; Detroit v. D. C. S. E.. 184 id. 368. 

'Williams v. Bruffy, 96 U. S. 176; Ford v. Surget, 97 id. 594; Stevens 
V. Griffith, 111 id. 48. 

^"L. W. Co. V. Easton, 121 U. S. 388, 391; Denny v. Bennett, 128 id. 
489; Lake County v. EoUins, 130 id. 662; Pleasant Township v. A. L. I. 
Co., 138 id. 67; Brown v. Smart, 145 id. 454; Bier v. McGehee, 148 
10 



140 IMPAIRMENT OP CONTRACTS. 

determining the particular contract to be invalid, cannot 
be said to be a law impairing the obligation of the con- 
tract, for otherwise the federal court of last resort would 
be called upon to ' ' re-examine the judgments of the state 
courts in every case involving the enforcement of con- 
tracts." As Harlan, J., said, in L. W. Co. v. Easton,^^ 
''The state court may erroneously determine questions 
arising under a contract, which constitute the basis of the 
suit before it; it may hold a contract to be void, which, 
in our opinion, is valid ; it may adjudge a contract to be 
valid, which, in our opinion, is void; or its interpretation 
of the contract may, in our opinion, be radically wrong ; 
but, in neither of such cases, would the judgment be re- 
viewable by this court under the clause of the Constitution 
protecting the obligation of contracts against impairment 
by state legislation, and under the existing statutes defin- 
ing and regulating its jurisdiction, unless that judgment 
in terms, or by its necessary operation, gives effect to some 
provision of the state constitution, or some legislative 
enactment of the state, which is claimed by the unsuccess- 
ful party to impair the obligation of the particular 
contract in question. "^^ It must, therefore, appear in 

id. 137; P. I. Co. v. Tennessee, 161 id. 193; G. & S. I. R. v. Hewes, 
183 id. 66; Pinney v. Nelson, iUd. 144; D. G. Co. v. U. S. G. Co., 187 
id. 611; O. W. Co. v. Oslikosh, 187 id. 437; Blackstone v. Miller, 188 id. 
189. See also C, M. & St. P. Ry. v. Solan, 169 id. 133; K. W. Co. v. 
Knoxville, 189 id. 434. 

" 121 U. S. 388, 392. 

^See also E. Co. v. Eock, 4 Wall. 177, 181; R. Co. v. MeClure, 10 id. 
511, 515; Knox v. Exchange Bank, 12 id. 379, 383; Delmas v. Ins. Co., 
14 id. 661, 665; University v. People, 99 U. S. 309, 319; C. L. I. Co. v. 
Needles, 113 id. 574; N. O. W. W. v. L. S. Co., 125 id. 18; Kreiger 
V. Shelby E., ibid. 39; H. Bridge Co. v. Henderson City, 141 id. 679; 
St. P., M. & M. Ry. V. Todd County, 142 id. 282; Missouri v. Harris, 
144 id. 210; Wood v. Brady, 150 id. 18; C. L. Co. v. Laidley, 159 id. 
103; Hanford v. Davies, 163 id. 273; Turner v. Wilkes County Comrs., 
173 id. 461; Wilkes County v. Coler, 180 id. 506; G. & S. I. E. v. Hewes, 
183 id. 66; N. O. W. Co. v. Louisiana, 185 id. 336; N. M. B. & L. 
Assn. V. Brahan, 193 id. 635. 



JUDGMENTS NOT CONCLUSIVE. 141 

any cause in which it is sought to reverse in the Supreme 
Court of the United States, a decree or judgment of a 
state court for contravention of the constitutional pro- 
hibition of the impairment of contracts, that in the par- 
ticular case the state court enforced to the prejudice of 
the plaintiff in error some act of state, either in the form 
of a state constitution, or an act of the state legislature, 
or a judgment of a court in another case, or an act of an 
extrinsic authority to which the state by its adoption 
thereof gave the force of law, and that the act of state, 
whatever its form, was, as affecting the contract, put into 
operation subsequently to the making of the con- 
tract. 

Judgments of state courts not conclusive either as to the 
non-existence or non-impairment of contracts. 

58. In questions under this clause of the Constitution 
the courts of the United States do not accept as con- 
clusive upon them the judgment of the state court either 
as to the non-existence of contracts or as to their non- 
impairment,^^ for, if the decision of the state court were 
to be accepted without inquiry or examination, the consti- 
tutional prohibition would be nugatory. 

^^ state Bank v. Knopp, 16 How. 369; O. L. I. & T. Co. v. Debolt, 
ibid. 416; Jefferson Branch Bank v. Skelly, 1 Bl. 436; Bridge Proprietors 
V. Hoboken Co., 1 Wall. 116; Delmas v. Ins. Co., 14 id. 661; Wright 
V. Nagle, 101 U. S. 791; Williams v. Lomsiana, 103 id. 637; L. & N. E. 
V. Palmes, 109 id. 244; Pleasant Township v. A. L. I. Co., 138 id. 67; 
Bryan v. Board of Education, 151 id. 639; M. & O. E. v. Tennessee, 153 
id. 486; Shelby County v. Union & Planters' Bank, 161 id. 149; Woodruff 
V. Mississippi, 162 id. 291; Douglas v. Kentucky, 168 id. 488; C, B. & Q. 
E. V. Nebraska, 170 id. 57; McCuUough v. Virginia, 172 id. 102; Walsh 
V. C, H. V. & A. E., 176 id. 469; I. C. E. v. Chicago, ibid. 646; H. & T. 
C. E. V. Texas, 177 id. 66; Stearns v. Minnesota, 179 id. 223; Board 
of Liquidation v. Louisiana, ibid. 622; F. W. Co. v. Freeport City, 180 id. 
587; St. P. G. L. Co. v. St. Paul, 181 id. 142; Wilson v. Standefer, 184 id. 
399; of. Wagonner v. Flack, 188 id. 595. 



142 IMPAIRMENT OF CONTRACTS. 

The obligation of a contract defined. 

59. The obligation of a contract is the duty of per- 
formance which the law imposes on one, or other, or 
both, of the parties to the contract.^* As Marshall, C. J., 
said in the case cited, ''Any law which releases a part 
of this obligation must in the literal sense of the word 
impair it." The application of the constitutional prohi- 
bition is not dependent on the extent of the impairment of 
vested rights.^ ^ 

Legislation as to remedies. 

60. A state may, without impairment of the obligation 
of a contract, regulate, or even limit, the remedies for 
the enforcement of that contract, provided that it does 
not take away all remedies therefor, and that it leaves in 
force a substantial remedy.^® Thus a state may, in the 
case of a corporation whose charter requires that service 
of process on the corporation shall be made only at its 
principal office, provide by subsequent legislation that such 
process may be served on any officer, clerk, or agent of 
the corporation.^^ A state may abolish imprisonment for 

"Sturges V. Crowninshield, 4 Wheat. 197. See also Bedford v. E. B. & 
L. Assn., 181 U. S. 227, 241. 

^= Green v. Biddle, 8 Wheat. 1. But where a charter authorizing the con- 
solidation of railways was modified by a statute prohibiting the consolida- 
tion of competing roads before such consolidation had been attempted, the 
court said: "Where the charter authorizes the company in sweeping terms 
to do certain things which are unnecessary to the main object of the grant, 
and not directly and immediately within the contemplation of the parties 
thereto, the power so conferred, so long as it is unexecuted, is within the 
control of the legislature and may be treated as a license, and may be 
revoked, if a possible exercise of such power is found to conflict with 
the interests of the public." "We cannot recognize a vested right to do 
a manifest wrong: " Pearsall v. G. N. Ey., 161 U. S. 646, 673, 675. See also 
A. Ey. V. New York, 176 id. 335, 345. 

^^ And it may, of course, grant an additional remedy : N. O. C. & L. E. 
V. New Orleans, 157 U. S. 219; Wagonner v. Mack, 188 id. 595. See 
also Wilson v. Standefer, 184 id. 399. 

"E. Co. V. Hecht, 95 U. S. 168; C. M. L. I. Co. v. Spratley, 172 id. 602. 



LEGISLATION AS TO EEMEDIES. 143 

debt as a remedy for breach of contract -/^ it may validate 
technically defective mortgages,^ ^ or conveyances by 
femes covert ;2^ it may by statute grant new trials and 
create new tribunals to set aside grants or reverse judg- 
ments alleged to be fraudulent ; ^^ it may provide speedy 
and equitable methods for determining the title to lands 
under patents granted by the state ; ^^ it may authorize 
at the request of all parties in interest the discharge of 
testamentary trustees of real estate ; ^^ it may change the 
rate of interest to be paid to the purchaser in the case of 
the redemption of mortgaged premises sold under fore- 
closure ; -^ it may repeal usury laws which unrepealed 
would have avoided the contract ; ^^ it may prescribe a 
scheme for the reorganization of an embarrassed corpor- 
ation and provide that creditors who have notice of, and 
do not dissent from, the scheme shall be bound thereby ; ^^ 
it may reduce the limitation of time for bringing suit 
provided that a reasonable limit elapses after the enact- 
ment before the limitation bars a suit upon existing con- 
tracts ; ^^ it may require registration as a prerequisite to 
the legal enforcement of existing mortgages, provided 
that a reasonable period be allowed before the law goes 
into effect ; ^^ it may require holders of tax sale certificates 
to give notice to the occupant of the land, if any there be, 

^» Mason v. Haile, 12 Wheat. 370; Penniman's Case, 103 U. S. 714. 

^* Gross -;;. U. S. Mtge. Co., 108 U. S. 477. 

^''Eandall v. Kreiger, 23 Wall. 137. 

^^ League v. De Young, 11 How. 185. 

^^ Jackson v. Lamphire, 3 Pet. 280. 

^Williamson v. Suydam, 6 Wall. 723. 

^ C. M. L. I. Co. V. Cushman, 108 U. S. 51 ; Hooker v. Burr, 194 id. 415. 

^^ Ewell V. Daggs, 108 U. S. 143. 

==" GilfiUan V. U. C. Co., 109 U. S. 401. 

"Terry v. Anderson, 95 U. S. 628; Barrett v. Holmes, 102 id. 651; 
Koshkonong v. Burton, 104 id. 668; In re Brown, 135 id. 701; Wheeler 
V. Jackson, 137 id. 245. See also Wilson v. Iseminger, 185 id. 55; 
O. W. Co. V. Oshkosh, 187 id. 437. 

^ Vance v. Vance, 108 U. S. 514. 



144 IMPAIEMENT OF CONTRACTS. 

before taking a tax deed ; ^^ it may require registration 
with municipal officials of judgments against a munici- 
pality;^^ it may provide that a city shall not be sued 
until the claim has been presented to the city council and 
disallowed by it, and that, thereupon, an appeal to court, 
if made, shall be made within a limited time ; ^^ it may 
free shareholders of a corporation from individual liabil- 
ity for debts of the corporation to an amount greater than 
their shares, for such legislation does not impair the direct 
liability of the corporation ; ^^ it may, after a state bank 
has obtained judgment against a party, authorize that 
party to set off against the judgment circulating notes 
of the bank procured by him after the entry of the judg- 
ment ; ^^ it may, after judgment has been obtained, reduce 
the rate of interest thereafter to accrue on that judg- 
ment ; ^* and, a disseised tenant for years being entitled to 
sue on the landlord's covenant for quiet possession and 
also on a statutory remedy for forcible entry and detainer, 
the state may take away the statutory remedy, provided 
that the action on the covenant be left unimpaired.^^ A 
state, having issued bonds, and having by a subsequent 
statute provided for the funding of those bonds on certain 
terms at a reduced rate of interest, may, by a later statute, 
prohibit the funding of a specified class of those bonds 
until by judicial decree their validity shall have been 
determined, for the original remedy of the bondholder is 
not thereby impaired.^ ^ So also, a state, which has con- 
tracted to receive its taxes in the notes of a certain bank, 

^^ Curtis V. Whitney, 13 Wall. 68. 

'"Louisiana v. New Orleans, 102 U. S. 203. 

^ O. W. Co. V. Oshkosh, 187 U. S. 437. 

^■^ Ochiltree v. E. Co., 21 Wall. 249. 

==' Blount V. Windley, 95 U. S. 173. 

^ Morley v. L. S. & M. S. Ey., 146 U. S. 162. 

"^ Drehman v. Stifle, 8 Wall. 595. 

'* Guarantee Co. v. Board of Liquidation, 105 U. S. 622. 



LEGISLATION AS TO REMEDIES. 145 

may, by statute, provide that the only remedy for tax- 
payers whose tender of such notes may be refused shall 
be to pay in legal money and within a time limited to 
bring suit against the tax collector, judgment against 
whom shall be a preferred claim against the state.^^ So 
also where the laws of a state permit coupons of state 
bonds to be received in payment of state taxes, provided 
that in case of the refusal of such coupons when tendered 
the holder thereof might enforce his rights under the 
contract by suing out an alternative mandamus against 
the officer refusing the coupons, and if judgment should 
be rendered in favour of the holder of the coupons that 
he could then have forthwith a peremptory writ of 
mandamus for the recovery of damages and costs, the 
obligation of the contract was not impaired by a subse- 
quent statute which required, in case of the refusal of the 
tender of the coupons, a payment of the state taxes in 
lawful money, and a lodging of the coupons in a state 
court of competent jurisdiction, and the subsequent fram- 
ing of an issue to determine whether or not the coupons 
were genuine and legally receivable for taxes, with a right 
of appeal to the state court of last resort.^^ 

On the other hand, a state, in acting upon the remedy, 
cannot take away all, or a substantial part, of the power 
for the enforcement of a contract. It, therefore, cannot 
forbid its courts to entertain jurisdiction of a suit to 
enforce, or obtain damages for the breach of, a class of 
contracts legally valid when made ; ^^ nor can a state 
forbid its courts, after the abolition of slavery, to take 
jurisdiction of actions upon contracts made before that 
abolition and the consideration for which was the price 

" Tennessee v. Sneed, 96 U. S. 69, 

^ Antoni v. Greenhow, 107 TJ. S. 769 ; Moore v. Greenhow, 114 id. 338. 

^"Van Hoffman v. Quincy, 4 Wall, 552. 



146 IMPAIRMENT OF CONTRACTS. 

of slaves ; ^'^ nor could a state, after the restoration of 
peace, declare void a contract made between its citizens 
during the war of the rebellion stipulating for payment 
in confederate notes ; *^ nor can a state, after the making 
of a contract, change to the prejudice of either party the 
measure of damages for its breach ; ^^ nor can a state, by 
subsequent legislation, impose as a condition precedent 
to the legal enforcement of a contractual right, that he 
who seeks to enforce that right shall prove an extrinsic 
and independent fact that has no necessary connection 
with the right to be enforced, as, for instance, that he 
never bore arms in support of, or never aided, the re- 
bellion against the United States ; *^ or that he has paid 
certain taxes; nor can it permit the defendant to set off 
damages not caused by the plaintiff, as, for instance, the 
defendant's loss of property resulting from the war of 
the rebellion ; ^^ nor can a state, after a judgment has been 
enrolled, materially increase the debtor 's exemption ; *^ 
nor can a state after the making of a mortgage enlarge 
the period of time allowed for the redemption after fore- 
closure ; *^ nor forbid a sale in foreclosure at which less 
than two-thirds of the value of the mortgaged premises 
as fixed by appraisement shall be realized ; *' nor take 
away the right to compound interest, if given by the law 
existing at the time of the making of the contract ; *^ nor 

*"> White V. Hart, 13 Wall. 646. 

^ Delmas v. Insurance Co., 14 Wall. 661. 

^Effinger v. Kenney, 115 U. S. 566; W. & W. E. v. King, 91 id. 3. 

*» Pierce v. Carskadon, 16 Wall. 234. 

'* Walker v. Whitehead, 16 Wall. 314. 

*^ Gunn V. Barry, 15 WaU. 610. 

^ Barnitz v. Beverly, 163 U. S. 118. See also Bradley v. Lightcap, 195 id. 
1 • cf. Hooker v. Burr, 194 id. 415. 

" Bronson v. Kinzie, 1 How. 311 ; McCracken v. Hayward, 2 id. 608 ; 
Gantly v. Ewing, 3 id. 707. 

«Koshkonong v. Burton, 104 U. S. 668; cf. Morley v. L. S. & M. S. Ey., 
146 id. 162. 



THE TERM ' ' CONTRACTS ' ' DEFINED. 147 

repeal a statute in force at the time of making tlie contract 
which renders the stock of a shareholder liable for the 
debts of the corporation ; ^^ nor materially change the 
rules of evidence which were in existence when the con- 
tract was made.^*' 

The term "contracts" defined. 

61. The term ' ' contracts, ' ' as used in the constitutional 
prohibition, includes both executory and executed con- 
tracts,^^ comprehending, within the former class, promis- 
sory notes and bills of exchange,^^ corporate bonds,^^ 

*» Hawthorne v, Calef , 2 Wall. 10. 

™ Bryan v. Virginia, 135 U. S. 685. 

" ' ' Contract ' ' is, as Field, J., said in Louisiana v. Mayor of New Orleans, 
109 U. S. 285, 288, "used in the Constitution in its ordinary sense as 
signifying the agreement of two or more minds for consideration pro- 
ceeding from one to the other to do or not to do certain acts. ' ' In Sturges 
V. Crowninshield, 4 Wheat. 122, 197, Marshall, C. J., said: "A contract is 
an agreement in which a party undertakes to do or not to do a particular 
thing. ' ' Marshall, C. J., said, in Fletcher v. Peck, 6 Cr. 87, 136 : "A con- 
tract is ,a compact between two or more parties, and is either executory or 
executed. An executory contract is one in which a party binds himself to 
do, or not to do, a particular thing. ... A contract executed is one in 
which the object of contract is performed, and this, says Blackstone, differs 
in nothing from a grant. . . . Since then, in fact, a grant is a contract 
executed, the obligation of which still continues, and since the Constitution 
uses the general term 'contracts,' without distinguishing between those 
which are executory and those which are executed, it must be construed 
to comprehend the latter as well as the former." In Dartmouth College 
V. Woodward, 4 Wheat. 629, Marshall, C. J., said: "The provision of the 
Constitution never has been understood to embrace other contracts than 
those which respect property or some object of value and confer rights 
which may be asserted in a court of justice." Daniel, J., said, in Butler 
V. Pennsylvania, 10 How. 402, 416: "The contracts designed to be pro- 
tected . . . are contracts by which perfect, certain, definite, fixed, private 
rights of property are vested." 

" Stiu"ges V. Crowninshield, 4 Wheat. 122; McMillan v. McNeill, ibid. 
209; Farmers & Mechanics' Bank v. Smith, 6 id. 131; Ogden v. Saunders, 
12 id. 213; Boyle v. Zacharie, 6 Pet. 635; Suydam v. Broadnax, 14 id. 
67; Cook v. Moffat, 5 How. 295; Baldwin v. Hale, 1 Wall. 223. 

" State Tax on Foreign-held Bonds Case, 15 Wall. 300. 



148 IMPAIEMENT OF CONTEACTS. 

municipal bonds,^* and municipal contracts for the pay- 
ment of the salaries of their employes ^^ and, generally, all 
legally enforcible contracts to do, or not to do, any par- 
ticular act; and, within the latter class, grants and judg- 
ments founded upon contracts,^^ but not judgments 
founded upon torts ; ^ ' nor is marriage a contract which 
may not be impaired by divorce legislation."^ 

There can be no impairment of the obligation of a 
contract which has not been legally made.^^ Thus a vote 
of the majority of the qualified voters of a county at an 
election held under a statute incorporating a railway and 
authorizing an issue of the bonds of the county in pay- 
ment for the stock of the railway, if the qualified voters 
so decide it, does not constitute a contract whose obliga- 
tion would be impaired by an amendment of the state 

'* County of Moultrie v. Eockingham T. C. S. Bank, 92 U. S. 631; Mobile 
V. Watson, 116 id. 289. But see Meriwether v. Garrett, 102 id. 472. 

'' Fisk V. Jefferson Police Jury, 116 U. S. 131. 

^^ Blount V. Windley, 95 U. S. 173 ; Memphis v. U. S., 97 id. 293 ; Wolff 
V. New Orleans, 103 id. 358; Louisiana v. Pilsbury, 105 id. 278; Ealla 
County Court v. U. S., iMd. 733; Nelson v. St. Martin's Parish, 111 id. 
716; Mobile v. Watson, 116 id. 289; ef. Morley v. L. S. & M. S. Ky., 146 
id. 162. 

"Louisiana v. New Orleans, 109 U. S. 285; Freeland v. Williams, 131 
id. 405. 

=*^Himt V. Hunt, 131 U. S. clsv; Maynard v. Hill, 125 id. 190. 

^^ Aspinwall v. Daviess County, 22 How. 364 ; Morgan v. Louisiana, 93 
U. S. 217; Wadsworth v. Supervisors, 102 id. 534; Norton v. Board of 
Comrs. of Brownsville, 129 id. 479; Lake County v. EoUins, 130 id. 
662; Lake County v. Graham, ibid. 674; Campbell v. Wade, 132 id. 34; 
Pleasant Township v. A. L. I. Co., 138 id. 67; New Orleans v. N. O. W. 
W., 142 id. 79; H. G. L. Co. v. Hamilton City, 146 id. 258; I. C. E. v. 
Illinois, ibid. 387; Bier v. McGehee, 148 id. 137; Citizens' S. & L. Assn., 
V. Perry County, 156 id. 692; Woodruff v. Mississippi, 162 id. 291; 
C. M. L. I. Co. V. Spratley, 172 id. 602; Los Angeles v. L. A. W. Co., 177 
id. 558; Weber v. Eogan, 188 id. 10; Zane v. Hamilton Coimty, 189 
id. 370; U. E. v. City of New York, 193 id. 416; cf. C, M. & St. P. 
Ey. V. Solan, 169 id. 133; Gunnison County Comrs. v. EoUius, 173 id. 
255; H. & T. C. E. v. Texas, 177 id. 66; Waite v. Santa Cruz, 184 id. 
302; Tulare Irr. Dist. v. Shepard, 185 id. 1. 



THE TERM ' ' CONTEACTS '' ' DEFINED. 149 

constitution,^^ or by a repeal of the statute,^^ before the 
subscription be made or the bonds issued. So, also, bonds 
which are fraudulently put into circulation by a state 
treasurer after they have been declared void by the state 
constitution cannot impose any liability upon the state.^^ 
And a contract which is void because its execution is 
beyond the powers of the municipality ^^ or county ^^ at- 
tempting its execution cannot irrevocably bind the munici- 
pality or county. Moreover a state cannot enter into an 
irrepealable contract by a conveyance of property in dis- 
regard of a public trust under which it is bound to hold 
and manage that property, as in the case of a conveyance 
of soil under navigable waters.*^^ On the same principle, 
a state statute which is void by reason of repugnancy to 
the Constitution of the United States cannot constitute a 
contract of exemption from state taxation ; as, for instance, 
a statute imposing taxation on national banks to an extent 
not permitted by the National Banking Act, and, there- 
fore, a subsequent state statute imposing on national 
banks a taxation which, though a heavier burden than that 
imposed by the earlier statute, is yet within the limits 

^^Aspinwall v. Daviess County, 22 How. 364. 

''^ Wadsworth v. Supervisors, 102 U. S. 534; cf. Campbell v. Wade, 132 
id. 34. 

^^ Bier v. McGehee, 148 U. S. 137. 

«^ Norton v. Board of Comrs. of Brownsville, 129 U. S. 479; Pleasant 
Township v. A. L. I. Co., 138 id. 67. 

■^Lake County v. EoUins, 130 U. S. 662; Lake County v. Graham, ibid. 
674; Zane v. Hamilton County, 189 id. 370; cf. Gunnison County Comrs. 
V. EoUins, 173 id. 255; H. & T. C. E. v. Texas, 177 id. 66. 

"=1. C. E. V. Illinois, 146 U. S. 387, 460. Two justices took no part in 
the decision and three justices dissented. See also I. C. E. v. Illinois, 184 
id. 77; M. T. Co. v. MobUe, 187 id. 479. In PearsaU v. G. N. Ey,, 
161 id. 646, where a charter authorizing the consolidation of railways 
was modified by a statute prohibiting the consolidation of competing roads, 
before any such consolidation had been attempted, the court said: "We 
cannot recognize a vested right to do a manifest wrong." And see L. & 
N. E. V. Kentucky, 183 id. 503, 518, 



150 IMPAIRMENT OF CONTRACTS. 

permitted by the National Banking Act, does not impair 
the obligation of any contract.®^ On the same principle, 
a statutory exemption from state taxation, if granted in 
violation of the constitution of the state, does not bind the 
state as a contract.^^ 

State insolvent laws. 

62. There was, for some time, a controversy as to the 
effect of the constitutional prohibition upon state in- 
solvent laws. In Sturges v. Crowninshield,^^ the action 
being brought in a federal court within the state of Massa- 
chusetts, and the plaintiff being a citizen of Massachusetts, 
and the defendant a citizen of New York, it was held that 
a discharge under an insolvent law of New York, enacted 
subsequently to the making within that state of a contract 
to be performed within the state, was void as an impair- 
ment of the obligation of that contract. In McMillan v. 
McNeill,®*^ the action being brought in a court of the state 
of Louisiana, the plaintiff and defendant both being citi- 
zens of South Carolina, and the contract having been 
made and stipulated to be performed in that state, it was 
held that a discharge under an antecedently-enacted law 
of Louisiana impaired the obligation of the contract, and 
was no bar to its enforcement. In F. & M. Bank v. 
Smith,"^^ the action being brought in a court of the state of 
Pennsylvania, and both plaintiff and defendant being 
residents of that state, and the contract having been made, 
and to be performed, in that state, it was held that a dis- 

*' People V. Commissioners of Taxes, 94 U. S. 415. 

"Trask v. Maguire, 18 Wall. 391; Morgan v. Louisiana, 93 U. S. 217; 
Shields v. Ohio, 95 id. 319; E. Cos. v. Gaines, 97 id. 697; K. & W. E. v. 
Missouri, 152 id. 301; P. I. Co. v. Tennessee, 161 id. 193; G. & S. I. E. v. 
Hewes, 183 id. 66; cf. Lake County v. Graham, 130 id. 674. 

^ 4 Wheat. 122. 

•» 4 Wheat. 209. 

'"6 Wheat. 131. 



STATE INSOLVENT LAWS. 151 

charge under a subsequently enacted insolvent law of that 
state was no bar to the action. In Ogden v. Saunders,'^ ^ 
the plaintiff being a citizen of Kentucky and the defend- 
ant a citizen of New York, the contract having 
been made in New York to be performed in that state, 
and the action having been brought in a federal 
court in the state of Louisiana, it was held that a dis- 
charge under an antecedently-enacted insolvent law of the 
state of New York was no bar to the action ; and in Shaw 
V. Bobbins,'''- the same ruling was made, the action being 
brought in a court of the state of Ohio, the plaintiff 
being a citizen of Massachusetts, the defendant a citizen 
of New York, and the discharge set up being one that had 
been obtained under an antecedently-enacted insolvent 
law of the last-mentioned state. In Boyle v. Zacharie,'''^ 
Story, J., said, "The effect of the discharge under the in- 
solvent act is of course at rest, so far as it is covered by 
the antecedent decisions made by this court. The ulti- 
mate opinion delivered by Mr. Justice Johnson in the case 
of Ogden v. Saunders,'^'* was concurred in and adopted by 
the three judges, who were in the minority upon the 
general question of the constitutionality of state insolvent 
laws, so largely discussed in that case, ' ' and ^^ Marshall, 
C. J., expressed the same view as to the effect of the judg- 
ment in Ogden v. Saunders. In Sudyam v. Broadnax,"^^ 
the action having been brought in a court of the state of 
Alabama, the plaintiff being a citizen of New York, it was 
held that a judicial declaration of the insolvency of a 
decedent's estate under the terms of an antecedently- 

" 12 Wteat. 213. 

" 12 Wheat. 369, note. 

" 6 Pet. 643. 

'*12 Wheat. 213, 358. 

'^P. 635. 

" 14 Pet. 67. 



152 IMPAIRMENT OP CONTEACTS. 

enacted statute of Alabama was powerless to discharge a 
contract made by the decedent in his lifetime in New York 
and stipulated to be performed in that state. In Cook v. 
Moffat,'^''' the action being brought in a federal court in 
the state of Maryland, the plaintiff being a citizen of New 
York and the defendant a citizen of Maryland, and the 
contract having been made in New York to be performed 
in that state, it was held that a discharge under an antece- 
dently-enacted statute of Maryland was no bar to the ac- 
tion. In Baldwin v. Hale,"^^ the action having been brought 
in a federal court in the state of Massachusetts, the plain- 
tiff being a citizen of Vermont and the defendant a citizen 
of Massachusetts, and the contract having been made in 
Massachusetts, to be performed in that state, it was held 
that a discharge under an antecedently-enacted statute of 
Massachusetts did not bar the action. The result of the 
cases is, that a discharge under the insolvent laws of a 
state is not a bar to an action on a contract for the pay- 
ment of money, first: when the law under which the dis- 
charge has been granted has been enacted subsequently 
to the making of the contract; '^^ second: when, although 
the discharge has been granted under a law enacted 
antecedently to the making of the contract, the contract 
was made in another state to be performed in that other 
state ;^^ third: when, although the discharge has been 
granted under a law enacted antecedently to the making 
of the contract, and although the contract was made and 
to be performed in the state in which the discharge has 
been granted, the action upon the contract is brought in 
another state, by a party who is not a citizen of the state 

"5 How. 295. 
'»1 Wall, 223. 

^* Sturges V. Crowninsliield, 4 Wheat. 122 ; F. & M. Bank v. Smith, 6 
id. 131. 

«" McMillan v. McNeill, 4 Wheat. 209; Cook v. Moffat, 5 How. 295. 



JUDGMENTS AS CONTEACTS. 153 

granting the discharge, and who has not made himself a 
party to the proceedings in insolvency ; ^^ and fourth, 
when, although the discharge has been granted under a 
law enacted antecedently to the making of the contract, 
and although the contract was made and to be performed 
in the state in which the discharge has been granted, the 
action upon the contract is brought in the state granting 
the discharge by one who is not a citizen of that state, and 
who has not made himself a party to the proceedings in 
insolvency.^^ The questions, as yet not concluded by the 
authority of the court, are as to the effect of the discharge 
as regards creditors, who, though not citizens of the state 
granting the discharge, voluntarily become parties to the 
insolvency proceedings, or, who, being citizens of the state 
granting the discharge, and being duly notified of the in- 
solvency proceedings, neglect or refuse to become parties 
thereto. 

Judgments as contracts. 

63. Contracts for the payment of money being within 
the protection of the constitutional prohibition of the im- 
pairment of their obligation, judgments upon such con- 
tracts are equally entitled to protection.^^ Therefore, a 
judgment against a municipal corporation founded upon 
a breach of contract is not affected by a subsequent legis- 
lative abolition of the municipality's power to levy taxes 
for the payment of its debts.^'* But the rights of a judg- 
ment creditor are not impaired by a state statute reducing 

^^Ogden V. Saunders, 12 Wheat. 213 j Shaw v. Bobbins, ibid. 369, note. 
See also Denny v. Bennett, 128 U. S. 489. 

*- Baldwin v. Hale, 1 WaU. 223. 

^^ Blount V. Windley, 95 U. S. 173. 

^Memphis v. U. S., 97 U. S. 293; Wolff v. New Orleans, 103 id. 358; 
Louisiana v. Pilsbury, 105 id. 278; Ealls County Court v. U. S., ibid. 733; 
Nelson •;;. St. Martin's Parish, 111 id. 716; Mobile v. Watson, 116 id. 
289; Scotland County Court v. U. S., 140 id. 41. 



154 IMPAIRMENT OF CONTRACTS. 

the rate of interest thereafter to accrue upon existing 
judgments ; ^^ nor are judgments founded upon torts con- 
tracts whose obligation will be protected against subse- 
quent legislation.^^ 

Municipal taxation. 

64. A state cannot take away from a municipality ex- 
isting powers of taxation so as to deprive of his com- 
pensation an officer who has served his term.^^ County 
bonds issued by public officers under authority of law 
either upon the subscription, or upon the agreement to 
subscribe, to the stock of a railway constitute a contract 
between the county and the bondholders, whose obligation 
cannot be impaired by a subsequent legislative repeal of 
the statute authorizing the subscription, or by a subse- 
quent amendment to the state constitution prohibiting 
such a subscription.^^ But where public officers are by 
statute authorized to issue bonds in aid of railway con- 
struction only upon the fulfilment of a condition pre- 
cedent which is not fulfilled before the adoption of an 
amended state constitution prohibiting the issue of such 
bonds there is no contract whose obligation is impaired 
by the adoption of the state constitution.^^ On the same 
principle, a statutory authorization of borrowing of 
money by a municipality is not a contract between the 
state and the municipal creditors whose obligation can 
be impaired by the subsequent exercise by the state of 
the power of modifying the rate of taxation or of ex- 
empting certain property from taxation,^^ but a state 

«'* Morley v. L. S. & M. S. Ey., 146 U. S. 162. 

*" Louisiana v. New Orleans, 109 U. S. 285; Freeland v. Williams, 131 
id. 405. 

" Fisk V. Jefferson Police Jury, 116 U. S. 131. 

»» County of Moultrie v. Eoekingham T, C. S. Bank, 92 U. S. 631. 

^E. Co. V. Falconer, 103 U. S. 821. 

^ Gilman v. Sheboygan, 2 Bl. 510. 



HISTORY OF THE PROHIBITIOIT. 155 

cannot dissolve an existing municipal corporation having 
a bonded debt, for whose payment powers of taxation 
have been granted and specifically pledged, for that disso- 
lution interferes with the exercise of such power of 
taxation.^^ Nor can a state withdraw or restrict the 
taxing power of a municipality so as to impair the obliga- 
tion of contracts which have been made on the pledge, 
express or implied, that that taxing power shall be 
exercised for their fulfilment.^ ^ A statutory prohibition 
of the issuing by the courts of the state of a mandamus to 
compel the levying of a tax for the payment of the interest 
upon, or the principal of, municipal bonds, whose issue 
had been legally authorized, impairs the contract between 
the municipality and the bondholder.^^ In general, the 
statutory authorization of the contracting by a municipal- 
ity of an extraordinary debt by the issue of negotiable 
securities therefor conclusively implies a power in the 
municipality to levy taxes sufficient to pay the accruing 
interest upon, and the matured principal of, the debt, 
unless the statute conferring the authority, or the consti- 
tution of the state, or some general law in force at the 
time, clearly manifests a contrary legislative intent.®* 

History of the prohibition. 

65. It has never been doubted that contracts between 
individuals were protected by the constitutional provision, 
but it was formerly a matter of grave doubt whether or 
not contracts to which a state was a party were likewise 

'"Mobile V. Watson, 116 U. S. 289. But see Meriwether v. Garrett, 
102 id. 472. 

"'^ Memphis v. U. S., 97 U. S. 293; Wolff v. New Orleans, 103 id. 358; 
Balls County Court v. U. S., 105 id. 733; Nelson v. St. Martin's Parish, 
111 id. 716; Seibert v. Lewis, 122 id. 284; Scotland County Court v. U. S., 
140 id. 41. 

^'^ Louisiana v. Pilsbury, 105 U. S. 278. 

"Ealls County Court v. U. S., 105 U. S. 733. 
11 



156 IMPAIRMENT OF CONTRACTS. 

entitled to protection. The history of the Constitution 
shows clearly that the mischiefs which the framers of 
the Constitution intended to remedy by this prohibition 
were, primarily, those caused by state legislation enabling 
debtors to discharge their debts otherwise than as 
stipulated in their contracts, and that the prohibition was 
not intended by its originators to interfere with the exer- 
cise of state sovereignty in cases of other than private 
contracts. This restriction on the power of the states is 
not to be found in either Mr. Pinckney's, Mr. Hamilton's, 
or Mr. Paterson's pro jets as presented to the convention, 
nor is it implied in Mr. Madison's resolutions, nor does it 
appear in the draft reported by the Committee of Five on 
6th August, 1787 ; but when Article XIII of the report of 
that committee was under consideration on 28th August, 
Mr. King ''moved to add in the words used in the ordi- 
nance of Congress establishing new states, a prohibition 
on the states to interfere in private contracts," but, on 
motion of Mr. Eutledge, as a substitute for Mr. King's 
proposition, there was adopted a prohibition of state bills 
of attainder and ex post facto laws.''^ The journal of the 
convention mentions Mr. Eutledge 's motion, but omits 
all reference to Mr. King's proposition. Mr. Madison 
reports Mr. King's resolution, with the mention of dec- 
larations of opinion in favour of it by Messrs. Sherman, 
Wilson and Madison, and objections to it by Messrs. 
Gouverneur Morris and Mason, on the ground that state 
laws limiting the times within which actions might be 
brought necessarily interfered with contracts, and ought 
not to be prohibited, and that there might be other cases 
in which such interferences would be proper. There does 
not seem to be any record of any other discussion of this 
subject in the convention. The Committee of Eevision 

'^Madison Papers, 5 Elliot's Debates, 485. 



HISTORY OF THE PROHIBITION. 157 

reported on 12th Septeraber, 1787, to the convention their 
revised draft of the Constitution, in which Article I, 
Section 10, declares "No state shall . . , pass any . . . 
laws altering or impairing the obligation of contracts." 
In convention on Friday, 14th September, 1787, the clanse 
was finally amended and put into the form in which it 
appears in the Constitution, there being, so far as is 
known, no debate on the subject, save by Mr. Gerry, who 
''entered into observations inculcating the importance 
of the public faith and the propriety of the restraint put 
on the states from impairing the obligation of contracts, ' ' 
and unavailingly endeavoured to obtain the insertion in 
the Constitution of a similar restraint upon congressional 
action.^^ Mr. Bancroft states,^^ with reference to the 
Committee of Revision's report, that ''Gouverneur 
Morris retained the clause forbidding ex post facto laws — 
and resolute not ' to countenance the issue of paper money 
and the consequent violation of contracts, ' " ^s he of 
himself added the words, ' ' No state shall pass laws alter- 
ing or impairing the obligation of contracts. " ^^ Mr. 
Bancroft also quotes from the official report to the Gov- 
ernor of Connecticut made by Roger Sherman and Oliver 
Ellsworth, the deputies from that state to the Federal 
Convention, wherein they say, ''The restraint on the 
legislatures of the several states respecting emitting bills 
of credit, making anything but money a tender in payment 
of debts, or impairing the obligation of contracts by ex 
post facto laws, was thought necessary as a security to 
commerce, in which the interest of foreigners, as well as 
of the citizens of different states, may be affected. ' ' The 
clause does not appear to have been made a subject of 

^Madison Papers, 5 Elliot's Debates, 546. 
*'2 Hist, of the Constitution, 214. 
^ G, Morris, by Sparks, III, 323. 
"'GOpin, 1552, 1581. 



158 IMPAIRMENT OF CONTRACTS. 

discussion in any of the state conventions called to ratify 
the Constitution. Mr. Hamilton, when Secretary of the 
Treasury, said in his memorandum of 28th May, 1790, to 
President Washington on the subject of the resolutions of 
Congress with regard to the arrears of pay due to certain 
soldiers of the Revolution,^^^ ''The Constitution of the 
United States interdicts the states individually from pass- 
ing any law impairing the obligation of contracts. This, 
to the more enlightened part of the community, was not 
one of the least recommendations of that Constitution. 
The too frequent intermeddlings of the state legislatures, 
in relation to private contracts were extensively felt, and 
seriously lamented ; and a Constitution which promised a 
prevention, was, by those who felt and thought in that 
manner, eagerly embraced. ' ' Mr. Madison said in the 
Federalist,^ ''Bills of attainder, ex post facto laws, and 
laws impairing the obligation of contracts, are contrary 
to the first principles of the social compact, and to every 
principle of sound legislation. The two former are ex- 
pressly prohibited by the declarations prefixed to some 
of the state constitutions, and all of them are prohibited 
by the spirit and scope of these fundamental charters. 
Our own experience has taught us, nevertheless, that addi- 
tional fences against these dangers ought not be omitted. 
Very properly, therefore, have the convention added this 
constitutional bulwark in favour of personal security and 
private rights; and I am much deceived, if they have 
not, in so doing, as faithfully consulted the genuine senti- 
ments as the undoubted interests of their constituents. 
The sober people of America are weary of the fluctuating 
policy which has directed the public councils. They have 
seen with regret and with indignation, that sudden 

"» Works of Hamilton, Lodge's Edition, Vol. II, p. 147. 
' No, XLIV, Lodge 's Edition. 



HISTORY OF THE PROHIBITION. 159 

changes, and legislative interferences, in cases affecting 
personal rights, become jobs in the hands of enterprising 
and influential speculators, and snares to the more indus- 
trious and less informed part of the community. They 
have seen, too, that one legislative interference is but the 
first link of a long chain of repetitions ; every subsequent 
interference being naturally produced by the effects of the 
preceding. They very rightly infer, therefore, that some 
thorough reform is wanting, which will banish specula- 
tions on public measures, inspire a general prudence and 
industry, and give a regular course to the business of 
society." In Sturges v. Crowninshield,^ Marshall, C. J., 
said ' ' The fair, and, we think, the necessary construction of 
the sentence requires that we should give these words their 
full and obvious meaning. A general dissatisfaction with 
that lax system of legislation which followed the war of 
our revolution undoubtedly directed the mind of the con- 
vention to this subject. It is probable that laws, such as 
those which have been stated in argument, produced the 
loudest complaints, were most immediately felt. The at- 
tention of the convention, therefore, was particularly 
directed to paper money, and to acts which enabled the 
debtor to discharge his debt otherwise than as stipulated 
in the contract. Had nothing more been intended, nothing 
would have been expressed. But, in the opinion of the 
convention, much more remained to be done. The same 
mischief might be effected by other means. To restore 
public confidence completely, it was necessary not only to 
prohibit the use of particular means by which it might be 
effected, but to prohibit the use of any means by which the 
same mischief might be produced. The convention ap- 
pears to have intended to establish a great principle, that 
contracts should be inviolable. The Constitution, there- 

= 4 Wheat. 205. 



160 IMPAIEMENT OF CONTRACTS. 

fore, declares that no state shall pass ' any law impairing 
the obligation of contracts. ' ' ' 

State grants. 

66. In 1810 the judgment in Fletcher v. Peck^ estab- 
lished the doctrine that contracts to which a state is a 
party are within the protection of the constitutional 
prohibition. The facts in that case were these: in 1795 
the state of Georgia enacted a statute authorizing the 
issue of a patent to ''the Georgia Co." for a tract of land 
in that state, and on 13th January, 1795, the patent was 
issued. By sundry mesne conveyances before 1796 title in 
fee to a part of the tract vested in Peck, who had pur- 
chased for value and without notice of any matter which 
could invalidate the title of the state 's grantees. In 1796 
the state of Georgia enacted a statute repealing the Act of 
1795 and annulling the patent to the Georgia Co. On 14th 
May, 1803, Peek conveyed to Fletcher, covenanting, inter 
alia, that his title had been " in no way constitutionally or 
legally impaired by virtue of any subsequent act of any 
subsequent legislature of the state of Georgia. ' ' Fletcher 
brought covenant sur deed against Peck in the Circuit 
Court, declaring, inter alia, that the statute of 1796 was 
enacted by reason of fraud practiced in securing the 
enactment of the statute of 1795 and was an impairment 
of Peck's title. Peck pleaded that he was a purchaser 
for value and without notice, etc. Fletcher demurred, 
and the court entered judgment thereon for Peck, which 
judgment was affirmed in the Supreme Court on a writ 
of error, the ground of decision being, that the constitu- 
tional prohibition comprehends contracts executed, includ- 
ing grants, as well as contracts executory, and that the 
states being prohibited from passing "any bill of 

» 6 Cr. 87. 



EXPRESS EXEMPTION FROM TAXATION. 161 

attainder, ex post facto law, or law impairing the obliga- 
tion of contracts, ' ' and the prohibition of bills of attainder 
and ex post facto laws being a restraint upon govern- 
mental action, there is not to be implied ' ' in words which 
import a general prohibition to impair the obligation of 
contracts, an exception in favour of the right to impair the 
obligation of those contracts into which the state may- 
enter." It has, therefore, since 1810, been settled that 
the term ''contract" includes not only contracts between 
individuals, private and corporate, but also contracts, 
executed and executory, between the state and individuals, 
private and corporate. Following in the line of Fletcher 
V. Peck, it has been held that, a grant of land by a state 
to a railway corporation is a contract whose obligation is 
impaired by a subsequent act resuming the land,^ that a 
state cannot deprive of his right to recover mesne profits 
from a disseisor one whose title vested under a compact 
between that state and another state, and who under that 
compact was entitled to recover mesne profits,^ and that 
a state cannot, by statute, divest religious corporations of 
their title to land acquired under colonial laws ante- 
cedently to the revolution.*^ 

Express contracts of exemption from taxation. 

67. "When in 1812 the case of New Jersey v. Wilson^ 
came before the Supreme Court, the doctrine of 
Fletcher v. Peck necessarily required the court to hold 
that the state was bound by the express contract con- 
tained in a statute which authorized the purchase of 
certain land for the remnant of the tribe of Delaware 



* Davis V. Gray, 16 WaU. 203; H. & T. C, Ey. v. Texas, 170 U. S. 243; 
cf. A. Ey. V. New York, 176 id. 335. 

* Green v. Biddle, 8 Wheat. 1. 
« Terrett v. Taylor, 9 Cr. 43. 
'7 Cr. 164. 



162 IMPAIEMENT OF CONTRACTS. 

Indians, and whicli, in terms, declared that the land so 
purchased "shall not hereafter be subject to any tax," 
and that that contract forbade the subsequent taxation of 
such lands, after their sale to other parties with the state's 
consent. The legal inviolability of a state's contract to 
exempt lands from state taxation having been thus estab- 
lished, it followed that a similar contract with regard to 
corporate franchises or assets was entitled to the like 
protection, and that contracts of exemption from state 
taxation, contained in corporate charters, or stipulated 
by subsequent agreement, if made in express terms and 
supported by an adequate consideration, constitute con- 
tracts so binding upon the state that their obligation 
cannot be impaired by a subsequent repeal of the charter, 
or by an imposition of a rate of taxation inconsistent with 
the state's contract.^ Thus, the line and rolling stock of 
a railway cannot be taxed when its charter exempts from 
taxation its "property" and "shares;"^ nor can the 
shares of the capital stock of a corporation be taxed in 
the hands of the shareholders, when the charter requires 
the corporation to pay to the state a tax on each share of 
the stock "in lieu of all other taxes ;" ^^ nor can the gross 
receipts of a corporation be taxed when its charter ex- 
empts the corporation from taxation; ^^ nor can a corpor- 

* Jefferson Branch Bank v. Skelly, 1 Bl. 436 ; Chicago v. Sheldon, 9 
Wall. 50; W. & E. E, v. Eeid, 13 id. 264; E. & G. E. v. Eeid, iUd. 269; 
Hiimphrey v. Pegues, 16 id. 244; P. E. v. Maguire, 20 id. 36; New 
Jersey v. Yard, 95 U. S. 104; University v. People, 99 id. 309; Asylum v. 
New Orleans, 105 id. 362; W. & W. E. v. Alsbrook, 146 id. 279; M. & 
O. E. V. Tennessee, 153 id. 486; Shelby County v. Union & Planters' 
Bank, 161 id. 149; Stearns v. Minnesota, 179 id. 223; Citizens' Bank 
V. Parker, 192 id. 73; cf. G. & S. I. E. v. Hewes, 183 id. 66. 

« W. & E. E. V. Eeid, 13 Wall. 264; C. E. & B. Co. v. Wright, 164 U. S. 327. 

^*Farrington v. Tennessee, 95 U. S. 679; Bank of Commerce v. Ten- 
nessee, 161 id. 134, 163 id. 416; Shelby County v. Union & Planters' 
Bank, 161 id. 149. 

^ P. E. V. Maguire, 20 WaU. 36. 



EXPRESS EXEMPTIOISr FROM TAXATION. 163 

ation be taxed in excess of the limits specifically 
designated in the charter,^- or other contract.^^ Nor can 
a municipal corporation, in the exercise of authority 
delegated to it by statute, assess a street railway for a new 
paving of a street, when the railway has contracted with 
the municipality to keep the street in repair, for the 
acceptance of that contract limits by necessary implication 
the obligation of the railway to repairs, and relieves it 
from liability for betterments;^* nor can property held 
by a charitable corporation as an investment be taxed, 
when its charter exempts from taxation all property of 
whatever kind or description belonging to, or owned by, the 
corporation.^^ An adequate consideration for a charter 
exemption from taxation is to be found in the exercise by 
the corporation of the powers conferred by the charter,^ ^ 
or, in the case of corporations for charitable purposes, in 
the contribution of funds to the corporation for the ac- 
complishment of its benevolent purpose.^ ^ So also the 
building by a railway corporation of its line, under the 
terms of a statute amendatory of its charter and granting 
in express terms an exemption from taxation, constitutes 
a consideration for the exemption, though the original 
charter granted a power to the corporation, which it did 
not exercise, to build the line.^^ Statutory exemptions 
from state taxation not incorporated in charters and un- 
supported by a consideration moving to the state, or from 
the exempted corporation, do not constitute irrepealable 

^ E. & G. E. V. Eeid, 13 Wall. 269. 

" New Jersey v. Yard, 95 TJ. S. 104. 

"Chicago V. Sheldon, 9 Wall. 50. 

^'University v. People, 99 U. S. 309; Asylum v. New Orleans, 105 id. 
362. 

^^ C. Ey. V. C. S. E., 166 U. S. 557. 

"University v. People, 99 U. S. 309; Asylum v. New Orleans, 105 
id. 362. 

"Humphrey v. Pegues, 16 Wall. 244. 



164 IMPAIRMENT OP CONTRACTS. 

contracts of exemption, but are subject to modification or 
repeal in the exercise of legislative discretion; as, for 
instance, bounty laws offering such an exemption as an 
inducement for the organization of corporations to 
develop a particular industry,^^ or voluntary grants of 
exemption of the real property of a charity from taxa- 
tion. ^^ 

If the constitution of a state prohibits legislative grants 
of exemption from state taxation, such a grant, though 
accepted in good faith by the exempted corporation, 
cannot constitute a contract whose obligation is impaired 
by a subsequent imposition of taxation.^^ Such a consti- 
tutional prohibition operates to extinguish an exemption 
made by contract in the case of a railway which, having 
been exempted before the adoption of the constitutional 
prohibition, had been after the adoption thereof sold 
under foreclosure to reorganize the corporation.^^ On 
the same principle, a statutory consolidation of two rail- 
ways works the dissolution of the original corporation, 
and subjects the consolidated corporation to the operation 
of an amended state constitution, which took effect subse- 
quently to the incorporation of the original corporations, 
but prior to their consolidation; and, therefore, the state 
legislature may, without impairment of the obligation of 
the contract, prescribe rates for the transportation of 
passengers by the consolidated corporation, though one of 
the original corporations was by charter protected against 

"Salt Co. V. East Saginaw, 13 Wall. 373; Welch v. Cook, 97 U. S. 541; 
W. & M. Ej. V. Powers, 191 id. 379. 

=» Christ Church v. Philadelphia, 24 How, 300; Grand Lodge v. New 
Orleans, 166 U. S. 143. 

'^E. Cos. V. Gaines, 97 U. S. 697; G. & S. I. E. Co. v. Hewes, 183 id. 
66; cf. Stearns v. Minnesota, 179 id. 223, 253; N. C. Ey. v. Maryland, 
187 id. 258. 

2'Trask v. Maguire, 18 Wall. 391; Morgan v. Louisiana, 93 U. S. 217; 
People V. Cook, 148 id. 397. See also Memphis City Bank v. Tennessee, 
161 id. 186; P. Ins. Co. v. Tennessee, iUd. 193. 



EXPRESS EXEMPTION PROM TAXATION. 165 

such legislative regulation.^^ General statutory prohi- 
bitions of the exemption of corporations from state 
taxation are not binding on subsequent legislatures,^'* 
unless referred to in, and incorporated with, subsequently 
granted charters.^^ In the case of a statutory consolida- 
tion accepted by two railways, each of whose charters 
contained a limited exemption from taxation, a reserva- 
tion by a general statute before the enactment of the 
consolidating act and incorporated therewith, operates to 
extinguish the limited exemption contained in the 
original charters.^*' Of course, if the state in the 
charter reserves the right to alter, modify, or repeal that 
charter, that reservation authorizes any such amendment 
of the charter granted as will not defeat nor substantially 
impair the obligation of the grant or any rights that may 
be vested thereunder.-^ The first suggestion of any such 
reservation is to be found in the judgment of Parsons, 
C. J., in Wales v. Stetson,^^ which is cited by Miller, J., in 
Greenwood v. Freight Co.^^ A provision in a charter, or 
a general statute incorporated therewith, that that char- 
ter shall not be alterable in any other manner than by an 
act of the legislature, operates as a reserved power 

^ Shields v. Ohio, 95 U. S. 319. 

^* New Jersey v. Yard, 95 U. S. 104. 

^ Greenwood v. Freight Co., 105 U. S. 13 ; Tomlinson v. Jessup, 15 
Wall. 454. 

''^E. Co. V. Georgia, 98 U. S. 359. 

^' Close V. Glenwood Cemetery, 107 U. S. 466; S. C. S. Ey. v. Sioux City, 
138 id. 98; L. W. Co. v. Clark, 143 id. 1; H. G. L. Co. v. Hamilton 
City, 146 id. 258; People v. Cook, 148 id. 397; N. Y. & N. E. E. v. 
Bristol, 151 id. 556; Bryan v. Board of Education, itid. 639; C. Ey. v. 
C. S. E. 166 id. 557; Covington v. Kentucky, 173 id. 231; Citizens' 
Savings Bank v. Owensboro, ibid. 636; Looker v. Maynard, 179 id. 46; 
G. & S. I. E. v. Hewes, 183 id. 66; B. W. S. Co. v. Mobile, 186 id. 212; 
cf. Stearns ■;;. Minnesota, 179 id. 223, 239. See also Pearsall v. G. N. 
Ey., 161 id. 646; N. C. Ey. v. Maryland, 187 id. 258; Wright v. M. 
M. L. I. Co., 193 id. 657. 

^ 2 Mass. 146. 

"»105 U. S. 13, 19. 



166 IMPAIEMENT OF CONTRACTS. 

authorizing a statutory amendment of the charter.^" Ex- 
press contracts of exemption from state taxation are to be 
strictly construed.^ ^ Thus a charter of a railway impos- 
ing an annual tax assessed on the cost of the line, reserving 
the right to impose taxes on the gross earnings of the 
corporation and stipulating that the above several taxes 
shall be in lieu of other taxation, is not a contract whose 
obligation is impaired by a subsequent statute taxing lands 
owned by the railway and mortgaged as security for its 
bonded debt, but not used in the construction or operation 
of its line,^^ So a provision in the charter of a ferry 
company that it ''shall be subject to the same taxes as are 
now or hereafter may be imposed on other ferries, ' ' does 
not exempt the corporation from liability to pay an annual 
license fee on each of its boats, under the requirements of 
a municipal ordinance enacted under due legislative 
authority.^^ So the charter of a street railway requiring 
the payment to the municipality of such annual license 
"as is now paid by other railway companies," is to be 
construed to mean that the company shall not at any 
future time be required to pay a greater license than that 
then required to be paid by other companies.^* So a gen- 
eral exemption of the property of a corporation from 



^"Pennsylvania College Cases, 13 Wall. 190; Miller v. State, 15 id. 478; 
Holyoke Company v. Lyman, Hid. 500. 

^Tucker v. Ferguson, 22 Wall. 527; E. Cos. v. traines, 97 U. S. 697; 
Ey. Co. V. Philadelphia, 101 id. 528; Picard v. E. T., V. & G. E., 130 
id. 637; Y. & M. V. E. v. Thomas, 132 id. 174; W. & W. E. v. Alsbrook, 
146 id. 279; W. & St. P. L. Co. v. Minnesota, 159 id. 526; P. F. & M. 
I. Co. V. Tennessee, 161 id. 174; Central E. & B. Co. v. Wright, 164 id. 
327; Ford v. D. & P. L. Co., ibid. 662; Citizens' Savings Bank v. Owens- 
boro, 173 id. 636; Wells v. Savannah, 181 id. 531; Orr v. Gilman, 183 
id. 278; Chicago Theological Seminary v. Illinois, 188 id. 662; cf. Citizens' 
Bank v. Parker, 192 id. 73. 

"'Tucker v. Ferguson, 22 Wall. 527. See also Ford v. D. & P. L. Co., 
164 U. S. 662. 

"^ W. F. Co. V. East St. Louis, 107 U. S. 365. 

="Ey. Co. V. Philadelphia, 101 U. S. 528. 



EXPKESS EXEMPTION FROM TAXATION". 167 

taxation is construed as referring only to the property 
held for the transaction of the business of the company.^' 
And the exemption of the capital of a corporation from 
taxation does not necessarily exempt its stockholders from 
taxation on their shares of stock.^^ Nor does a statute by 
which lands granted to a railway company are exempted 
from taxation until such lands shall be sold and conveyed 
by that company remain operative after the full equitable 
title has been transferred by the railway .^^ A charter 
granting to a corporation all the rights, powers, and 
privileges ''granted by the charter" of another corpora- 
tion, confers an exemption from state taxation contained, 
not in the charter to which reference is made, but in a 
statute amendatory thereof, and the exemption thus con- 
ferred constitutes a contract whose obligation cannot be 
impaired by a subsequent repeal of the statute conferring 
by reference the right of exemption.^^ So a state may 
make a contract conferring the exclusive right of building 
a toll bridge by reference to a previously enacted statute.^^ 
On the other hand, the incorporation of a railway by a 
charter investing the company ' ' for the purpose of making 
and using the said road with all powers, rights, and privi- 
leges, and subject to the disabilities and restrictions that 
have been conferred and imposed upon" another railway 
company, whose charter contained an express exemption 
from taxation, does not confer that exemption on the 
former company.^^ So in the case of the merger of a 
corporation having an exemption from state taxation for 

='^rord V. D. & p. L. Co., 164 U. S. 662. 

3«New Orleans v. Citizens' Bank, 167 U. S. 371; cf. Shelby County v. 
Union & Planters' Bank, 161 id. 149. 

"'W. & St. P. L. Co. V. Minnesota, 159 U. S. 526. 

^* Humphrey v. Pegues, 16 Wall. 244. 

^» Biaghamton Bridge, 3 Wall. 51. 

■^E. Cos. V. Gaines, 97 U. S. 697. See also G. & S. I. E. v. Hewes, 183 
id. 66, 



168 IMPAIRMENT OF CONTEACTS. 

a limited period with another corporation having an un- 
limited exemption, the consolidating statute not granting 
any exemption, the consolidated corporation cannot claim 
as to property acquired from the first mentioned corpora- 
tion any exemption beyond the limits contained in the 
charter of that corporation.^^ So also a grant of im- 
munity from taxation will not pass merely by a convey- 
ance of the property and franchises of a railroad com- 
pany, although such company may hold its property 
exempt from taxation.*^ 

Express grants of peculiar privileges. 

68. Express stipulations in a charter as to the privileges 
thereby conferred on the corporation are also within the 
protection of the constitutional prohibition; thus, a pro- 
vision in the charter of a toll bridge company that it shall 
not be lawful for any person to erect another bridge 
within a specified distance of the bridge thereby author- 
ized, constitutes a contract binding the state not to 
authorize the construction of such other bridge,^^ but the 
authorization by the state of the construction of a railway 
viaduct does not impair the obligation of such a contract.** 
So, also, a statute forbidding the transfer by any bank of 
any note, bill receivable, or other evidence of debt, impairs 
the obligation of a contract created by the grant in a 
charter of a bank of power to receive, hold, and grant 
chattels and effects of what kind soever, and to receive 

*^Tomlinson v. Branch, 15 Wall. 460; W. & W. E. v. Alsbrook, 146 
U. S. 279. See also P. G. & C. Co. v. Chicago, 194 id. 1. 

^^Picard V. E. T., V. & G. R, 130 U. S. 637; People v. Cook, 148 id. 
397; N. C. Ey. v. Maryland, 187 id. 258. See also N. & W. E. v. Pendle- 
ton, 156 id. 667; C. & L. T. E. Co. v. Sandford, 164 id. 578. 

*' Bridge Proprietors v. Hoboken Co., 1 Wall. 116 ; Binghamton Bridge, 
3 id. 51; cf. Williams v. Wingo, 177 TJ. S. 601. 

** Bridge Proprietors v. Hoboken Co., 1 Wall. 116. 



EXPRESS GRANTS OF PECULIAR PRIVILEGES. 169 

deposits and discount notes.*^ On the same principle, a 
state is bound by its express contracts, not including 
appointments to public office, between the state and an 
individual for the performance of special services for a 
stipulated compensation,^® by its grants of franchises and 
exclusive privileges, such as the privilege of supplying a 
municipality with water,^'^ or gas,^* by its contracts con- 
ceding peculiar privileges to state obligations, as, for 
instance, stipulating that coupons of state bonds should be 
receivable for taxes,*^ or that the circulating notes of a 
bank should be receivable in payment for taxes,^^ or of 
other debts due to the state,^^ by contracts made by a 
political subdivision of the state for the payment of the 
principal of, or interest upon, the public debt of that sub- 
division,^^ and by the contracts of a corporation, whose 
sole shareholder is the state, for the payment of the 
corporate debt.^^ Contracts between two or more states, 
under which private rights have vested,^'* are so far 
protected that neither state can annul or modify such 
contracts to the prejudice of the private rights so 
vested. 

« Planters' Bank v. Sharp, 6 How. 301. 

" Hall V. Wisconsin, 103 U. S. 5 ; cf. Missoui-i v. Walker, 125 id. 339. 

"N. O. W. W. V. Elvers, 115 U. S. 674; St. T. W. W. v. N. O. W. W., 
120 id. 64; Walla Walla v. W. W. W. Co., 172 id. 1. See also Los 
Angeles v. L. A. W. Co., 177 id. 558; F. W. Co. v.'Freeport, 180 id. 587; 
S. W. W. Co. V. Skaneateles, 184 id. 354. 

*^ N. O. G. Co. V. L. L. Co., 115 U. S. 650; L. G. Co. v. C. G. Co., ibid. 683. 

"Hartman v. Greenhow, 102 U. S. 672; Virginia Coupon Cases, 114 id. 
270 ; Koyall v. Virginia, 116 id. 572, 121 id. 102 ; McGahey v. Virginia, 135 
id. 662; McCullough v. Virginia, 172 id. 102. 

^Furman v. Nichol, 8 Wall. 44; Keith v. Clark, 97 U. S. 454. 

=1 Woodruff V. Trapnall, 10 How. 190; Paup v. Drew, ibid. 218; Trigg 
V. Drew, ibid. 224. 

•^^ Murray v. Charleston, 96 U. S. 432. 

^^ Curran v. Arkansas, 15 How. 304; Barings v. Dabney, 19 Wall. 1. 

"Green v. Biddle, 8 Wheat. 1; C. & C. Bridge Co. v. Kentucky, 154 
U. S. 204. 



170 IMPAIRMENT OP CONTRACTS. 

Contracts between a state and its political subdivisions. 

69. There can be no contract between a state and a 
political subdivision of a state, such as a municipality, 
giving to the municipality a vested right to property, for 
all such property rights are held by the municipality in 
trust for the state, and are subject to revocation at the 
state's pleasure.^^ Therefore, a statute imposing a 
pecuniary penalty upon a railway, payable by it to a 
county of the state for its failure to locate the railway on 
a certain line, does not constitute a contract between the 
county and the railway whose obligation is impaired by a 
subsequent repeal of the statute.^^ On the same principle, 
a legislative charter of a railway, granting to it power to 
appropriate public wharves erected by a municipality 
under a prior legislative grant of authority, does not im- 
pair the obligation of any contract, nor infringe upon the 
rights of the municipality.^'^ And a grant to a township 
of the power of taxation is always subject to revocation, 
modification, and control by the legislative authority of 
the state.^^ 

Implied contracts in charters of incorporation. 

70. The next mooted question under this clause of the 
Constitution was whether or not a charter of incorpora- 
tion granted by a state constituted an implied contract 
on the part of the state, whose obligation the state could 
not be permitted to impair by a subsequent repeal or 
modification of the charter. The leading case is Trustees 
of Dartmouth College v. Woodward,^^ judgment in which 

^= Maryland v. B. & O. E., 3 How. 534; East Hartford v. H. Bridge Co., 
10 id. 511; E. Co. v. EUerman, 105 U. S. 166; New Orleans v. N. O. 
W. W., 142 id. 79; cf. Essex Pub. Eoad Board v. Skinkle, 140 id. 334. 

'^« Maryland v. B. & O. E., 3 How. 534. 

" E. Co. V. EUerman, 105 U. S. 166. 

=* Williamson v. New Jersey, 130 U. S. 189. 

=* 4 Wheat. 518. 



GRANTS TO MUNICIPALITIES. 171 

was rendered in 1819, and the facts in which were that, in 
1769, the royal governor of the province of New Hamp- 
shire, acting in the name of the king, granted to Dr. 
Wheelock and eleven other persons a charter, whereby 
they were incorporated under the title of ''The Trustees 
of Dartmouth College," with perpetual succession, and 
with ''the whole power of governing the college, of ap- 
pointing and removing tutors, of fixing their salaries, of 
directing the course of study to be pursued by the stu- 
dents, and of filling vacancies created in their own body. ' ' 
After the charter had been granted to, and accepted by, 
the corporation, ' ' property both real and personal, which 
had been contributed for the benefit of the college, was 
conveyed to and vested in the corporate body. ' ' Acts of 
the legislature of the state of New Hampshire, passed on 
27th June, and 18th December, 1816, increased "the 
number of trustees to twenty-one," gave "the appoint- 
ment of the additional number to the executive of the 
state," and created "a board of overseers, to consist of 
twenty-five persons, of whom twenty-one are also ap- 
pointed by the executive of New Hampshire," with 
"power to inspect and control the most important acts 
of the trustees. ' ' Prior to the enactment of these statutes, 
one Woodward was the secretary and treasurer of the 
corporation, and, as such, he had in his possession the 
charter, corporate seal, records, and certain chattels 
belonging to the corporation ; in 1816 the trustees removed 
him from office; in 1817 he was appointed secretary and 
treasurer of the new board of trustees, which was organ- 
ized under the statutes of 1816, and, as he refused to 
surrender to the original corporation the property which 
was in his hands, that corporation brought an action of 
trover in a court of the state of New Hampshire against 
him, in which the facts as stated having been found by a 

12 



172 IMPAIRMENT OF CONTRACTS. 

special verdict, judgment was entered in favour of the 
defendant by the state court of last resort, and the cause 
was removed by writ of error to the Supreme Court of 
the United States, which reversed the judgment of the 
state court, the ground of decision being that the college 
as incorporated was a private eleemosynary corporation ; 
that its charter, in terms, and by force of the donations of 
funds made on the faith of it, constituted a contract be- 
tween the colonial government and the corporation as the 
representative of the donors of those funds; that it was 
an implied, but essential, condition of that contract that 
that charter should not be so modified, without the consent 
of the corporation, as to substitute governmental control 
for the will of the donors; that, by the revolution, the 
duties, as well as the powers, of government devolved on 
the people of New Hampshire, and the obligations im- 
posed by the charter were the same under the state govern- 
ment as they had formerly been under the colonial 
government ; and that the effect of the statutes of 1816 was 
to substitute the will of the state for the will of the donors, 
and, to that extent, to impair the obligation of the contract 
between the state and the corporation, as made by the 
charter. Marshall, C. J., in his judgment,^*' after accept- 
ing the suggestion, that 'Haken in its broad, unlimited 
sense, the clause would be an unprofitable and vexatious 
interference with the internal concerns of a state, would 
unnecessarily and unwisely embarrass its legislation, and 
render immutable those civil institutions, which were 
established for purposes of internal government, and 
which, to subserve those purposes, ought to vary with 
varying circumstances;" and "that as the framers of the 
Constitution could never have intended to insert in that 
instrument a provision so unnecessary, so mischievous, 

'» 4 Wheat, pp. 628, 629. 



IMPLIED EXEMPTION FEOM TAXATION. 173 

and so repugnant to its general spirit, the term 'contract' 
must be understood in a more limited sense," expressly 
conceded, that "the framers of the Constitution did not 
intend to restrain the states in the regulation of their 
civil institutions, adopted for internal government, and 
that the instrument they have given us is not to be so 
construed," and that "the provision of the Constitution 
never has been understood to embrace other contracts, 
than those which respect property, or some object of 
value, and confer rights which may be asserted in a 
court of justice," put his judgment on the ground that 
the charter of the college constituted a contract as here- 
inbefore stated. Applying to the Dartmouth College 
Case, the test so clearly stated by Marshall, C. J., in 
Ogden V. Saunders,^^ that "the positive authority of a 
decision is co-extensive with the facts on which it is 
made," it is obvious that the case is an authority for 
the proposition, that the grant by a state of a charter 
of incorporation for private purposes unconnected with 
the administration of government constitutes a contract 
between the state and the corporation, whose obligation 
is not to be permitted to be impaired by a material 
modification of the terms of the charter, either expressed 
or implied, and that, in every such charter it is an implied 
condition of the contract, that the state shall not by 
subsequent legislation change either the purpose of the 
corporation, or its system of administration. 

Implied corporate exemption from taxation. 

71. The later cases have narrowed the doctrine of the 
Dartmouth College case with regard to the implied con- 
tracts created by charters, and thereby made obligatory 
on the states granting them. In Providence Bank v. 

"^2 Wheat. 333. 



174 IMPAIRMENT OF CONTRACTS. 

BillingSj^^ it was decided, in 1830, that the grant of 
corporate privileges does not carry with it any implied 
exemption of either the corporate franchise, or property, 
from state taxation, and this principle has been re-as- 
serted in the later cases of M. G. Co. v. Shelby County ,^^ 
N. M. R. V. Magnire,®* Bailey v. Maguire,^^ and Tucker 
V. Ferguson.^^ Following in the same line, it has been 
held that the imposition in a charter of a specific form or 
rate of taxation is not to be construed in the absence of 
an express contract of exemption from other taxation to 
constitute an implied exemption from such other taxa- 
tion ; *^^ and that the grant to a corporation of the right to 
sell its franchises does not entitle the vendee to exemptions 
from taxation granted to the vendor.^* 

Implied grants of peculiar privileges. 

72. On the same principle, it has been held that legisla- 
tive grants of special or exclusive privileges are, in the 
interests of the public, to be strictly construed, and do not 
vest in the grantee any powers other than those expressly 
granted.*^^ Thus, the charter of a corporation by a state 

^""4: Pet. 514. 

•^109 U. S. 398. 

"20 Wall. 46. 

«= 22 Wall. 215. 

««22 Wall. 527. 

*' License Tax Cases, 5 Wall. 462; Delaware E. Tax, 18 id. 206; Erie 
Ey. V. Pennsylvania, 21 id. 492; Home Ins. Co. v. Augusta, 93 U. S. 116; 
S. C. S. Ey. V. Sioux City, 138 id. 98; N. O. C. & L. E. v. New Orleans, 
143 id. 192; W. & W. E. v. Alsbrook, 146 id. 279; Shelby Co. v. Union & 
Planters' Bank, 161 id. 149; New Orleans v. Citizens' Bank, 167 id. 371. 

^People V. Cook, 148 U. S. 397; Pieard v. East T., V. & G. E., 130 id. 
637; K. & W. E. v. Missouri, 152 id. 301; N. C. Ey. v. Maryland, 187 id. 
258. See also Shields v. Ohio, 95 id. 319; St. L. & S. F. Ey. v. Gill, 156 id. 
649; N. & W. E. v. Pendleton, ibid. 667; P. F. & M. I. Co. v. Tennessee, 
161 id. 174; Memphis City Bank v. Tennessee, iUd. 186; P. I. Co. v. Ten- 
nessee, iUd. 193; C. & L. T. E. Co. v. Sandford, 164 id. 578; G. E. & I. 
Ey. V. Osborn, 193 id. 17. 

•"Eice V. E. Co., 1 Bl. 358; Charles Eiver Bridge v. Warren Bridge, 



IMPLIED GRANTS OF PECULIAR PRIYILEGES. 175 

does not constitute a contract by the state, either with the 
corporation or with the creditors thereof, that the cor- 
poration shall not subsequently be dissolved after due 
legal proceedings founded upon a forfeiture of the cor- 
porate franchises either for misuser or for non-userJ^ 
So, also, the creation of a corporation with the power to 
erect a toll bridge, or to operate a ferry, does not impliedly 
bind the state not to license the establishment of a com- 
peting bridge or ferry, either toll or f ree J^ The grant to 
a contractor of the sole privilege of supplying a munici- 
pality with water from a designated source is not im- 
paired by the grant to another party of the privilege of 
supplying it with water from another source ; "^^ and a 
municipality which has granted to a company the right to 
erect and operate an electric lighting plant does not 
impair the obligation of the contract by erecting a plant 
for itself J^ Nor does the grant to a quasi-public cor- 
poration of the right to sell its franchises by implication 
extend to the vendee any exemption from rate regulation 
which was possessed by its vendor ; '^* nor may a vendee 

11 Pet. 544; Mills v. St. Clair County, 8 How. 581; Perrine v. C, & D. C. 
Co., 9 id. 172; E. & P. E. v. L. E., 13 id. 81; O. L. I. & T. Co. v. Debolt, 
16 id. 416; Jefferson Branch Bank v. Skelly, 1 Bl. 436; The Binghamton 
Bridge, 3 Wall. 51, 75; G. E. & B. Co. v. Smith, 128 U. S. 174; Stein v. 
B. W. S. Co., 141 id. 67; H. G. L. Co. v. Hamilton City, 146 id. 258; 
M. & St. L. Ey. V. Gardner, 177 id. 332; L. & N. E. v. Kentucky, 
183 id. 503; Joplin v. S. M. L. Co., 191 id. 150; Stanislaus County v. 
S. J. & K. E. C. & I. Co., 192 id. 201; Shaw v. Covington, 194 id. 593. 
See also Owensboro v. O. W. S. Co., 191 id. 358. 

^Mumma v. The Potomac Co., 8 Pet. 281, 286; C. L. I. Co. v. Needles, 
113 U. S. 574, 584. 

"Fanning v. Gregoire, 16 How. 524; Turnpike Co. v. State, 3 Wall. 210; 
Wright V. Nagle, 101 U. S. 791 ; W. & B. Bridge Co. v. W. B. Co., 138 id. 
287; Williams v. Wingo, 177 id. 601. 

" Stein V. B. W. S. Co., 141 U. S. 67. 

" Joplin V. S. M. L. Co., 191 U. S. 150. See also N. W. Co. v. Newbury- 
port, 193 id. 561. 

^* Shields v. Ohio, 95 U. S. 319 ; St. L. & S. P. Ey. v. Gill, 156 id. 649 ; 
N. & W. E. V. Pendleton, ibid. 667; C. & L. T. E. Co. v. Sandford, 164 
id. 578; G. E. & I. Ey. v. Osborn, 193 id. 17. 



176 IMPAIRMENT OF CONTRACTS. 

whicli is exempt from such regulation claim exemption as 
to property whicli it acquires from a company which was 
not exempt/^ 

Exemption from the operation of the police power. 

73. There is no implied contract in a charter that the 
state will exempt the corporate franchises and property 
from the operation of such legislation as the state may 
deem necessary to secure the welfare of its citizens.'^^ The 
granting, therefore, of a charter to an insurance company 
does not invalidate a subsequent statute which requires 
that company to make a full return showing its business 
condition to the proper officers of the state.'^^ Nor can a 
state surrender by implication the right to regulate by 
subsequent legislation the location of railway stations and 
the stoppage of trains at those stations ; ^^ nor to require 
by such legislation the fencing of all tracks used by rail- 
way companies within the state.'^^ Nor can a state by 
implication exempt a railway company from liability in 

■"> p. G. & C. Co. V. Chicago, 194 U. S. 1. 

^«C., B. & Q. E. V. Iowa, 94 U. S. 155; Peik v. C. & N. W. Ey., ihid. 
164; W. & St. P. E. V. Blake, ibid. 180; Boyd v. Alabama, iUd. 645; 
Beer Co. v. Massachusetts, 97 id. 25; Fertilizing Co. v. Hyde Park, ihid. 
659; Euggles v. Illinois, 108 id. 526; Stone v. F. L. & T. Co., 116 id. 
307; G. E. & B. Co. v. Smith, 128 id. 174; P. E. v. MUler, 132 id. 75; C, M. 
& St. P. Ey, V. Minnesota, 134 id. 418; W. & B. Bridge Co. v. W. Bridge 
Co., 138 id. 287; New York v. Squire, 145 id. 175; M. & St. L. Ey. v. 
Emmons, 149 id. 364; E. I. Co. v. Ohio, 153 id. 446; N. & W. E. v. 
Pendleton, 156 id. 667; Pearsall v. G. N. Ey., 161 id. 646; L. & N. E. 
V. Kentucky, Hid. 677; St. L. & S. F. Ey. v. Mathews, 165 id. 1; C, B. &. 
Q. E. V. Chicago, 166 id. 226; L. I. W. Co. v. Brooklyn, iUd. 685; W. E. 
V. Defiance, 167 id. 88; C, B. & Q. E. v. Nebraska, 170 id. 57; A. Ey. v. 
New York, 176 id. 335; F. W. Co. v. Freeport, 180 id. 587; K. I. Co. v. 
Harbison, 183 id. 13; L. & N. E. v. Kentucky, ibid. 503; Stanislaus County 
V. S. J. & K. E. C. & I. Co., 192 id. 201; cf. N. Y., L. E. & W. E. v. 
Pennsylvania, 153 id. 628; C. M. L. I. Co. v. Spratley, 172 id. 602. 

"E. I. Co. V. Ohio, 153 U. S. 446. 

"E. Co. V. Hamersley, 104 U. S. 1. 

™ M. & St. L. Ey. V. Emmons, 149 U. S. 364. 



EXEMPTION FROM POLICE POWER. 177 

damages for fires caused by its locomotives,^" or for injury 
to property in the construction of its road.^^ On the same 
principle, the grant of a franchise to a railway does not 
preclude a municipality from making reasonable regula- 
tions as to the use of its streets.*^ A state which, by 
charter, has authorized a railroad to consolidate with 
other roads, may forbid its future consolidation with com- 
peting roads.^^ A state may place reasonable limitations 
upon the rates of fare and freight charged by its rail- 
ways.^* It may, in the case of a railway whose charter 
authorizes the company from time to time to fix, regulate 
and receive tolls and charges, vest in a commission by a 
subsequent statute the power of fixing those rates.^^ It 
may by statute regulate the rates of a water corporation 
whose charter vested the power of fixing the rates in a 
board of commissioners, some of whom were appointed 
by the company .^^ And it has been said that where a 
water company was organized under a statute which pro- 
vided that the commissioners should not reduce the rates 
below a given point, the state may by subsequent statute 
authorize the commissioners to reduce the rates below that 

^ St. L, & S. F, Ey. V. Mathews, 165 U. S. 1. 

"P. E. V. MiUer, 132 U. S. 75. 

»^ Baltimore v. B. T. Co., 166 U. S. 673 ; W. E. v. Defiance, 167 id. 88. 
See also C, B. & Q. E. v. Nebraska, 170 id. 57; L. G. L. Co. v. Murphy, 
ibid. 78. 

»^Pearsall v. G. N. Ey., 161 U. S. 646. 

«*C., B. & Q. E. V. Iowa, 94 U. S. 155; Euggles v. Ulinois, 108 id. 
526; G. E. & B. Co. v. Smith, 128 id. 174; M. E. Ey. v. Minnesota, 134 
id. 467; L. & N. E. v. Kentucky, 183 id. 503. In Eeagan v. F. L. & 
T. Co., 154 id. 362, 393, after admitting that a state has the general 
power to regulate rates, the court suggested, but did not decide, that there 
might be an implied grant to the railway of the right to reasonable tolls. 

*^ Stone V. F. L. & T. Co., 116 U. S. 307; Stone v. I. C. E., ibid. 347; 
C, M. & St. P. Ey. V. Minnesota, 134 id. 418. See also Owensboro v. O. 
W. Co., 191 id. 358. 

^'S. V. W. W. V. Schottler, 110 U. S. 347; cf. F. W. Co. v. Freeport, 
180 id. 587. 



178 IMPAIRMENT OF CONTRACTS. 

point.^'^ Indeed, while a state may, by an express agree- 
ment,^^ bind itself not to regulate the rates charged by 
a quasi-public corporation, such as a water-supply^^ or 
street railway ^'^ company, a state cannot, even by an 
express contract, bargain away its right to enact such 
legislation as may be necessary to secure the safety or to 
protect the health or the morals of its citizens. It may 
amend statutes which regulate the construction of rail- 
roads within its limits.®^ It may forbid the continued 
prosecution of their respective trades by corporations 
chartered by it for the purpose of rendering dead animals 
into fertilizers,^^ or manufacturing and selling liquors,^^ 
or selling lottery tickets and drawing lotteries.*^^ And, 
upon this principle, it has also been held that a state may, 
in derogation of a previous grant of the exclusive privi- 
lege of slaughtering cattle, authorize others to conduct the 
same business.**^ 

Contracts as to matters of public concern. 

74. In Dartmouth College v. Woodward,^^ Marshall, 
C. J., conceded that ''the framers of the Constitution did 

«' Stanislaus County v. S. J. & K. E. C. & I. Co., 192 U. S. 201. In 
this case, however, the state constitution had reserved to the legislature 
the power to amend or repeal the law in question. 

^ Even an express grant of exemption from regulation does not by im- 
plication extend to a purchaser from the grantee: Shields v. Ohio, 95 
U. S. 319; St. L. & S. F. Ey. v. Gill, 156 id. 649; N. & W. E. v. Pendle- 
ton, iUd. 667; C. & L. T. E. Co. v. Sandford, 164 id. 578; G. E. & I. 
Ey. V. Osborn, 193 id. 17 ; and see P. G. & C. Co. v. Chicago, 194 id. 1. 

«»Los Angeles v. L. A. W. Co., 177 U. S. 558; cf. K. W. Co. v. Knoxville, 
189 id. 434. 

»" Detroit v. D. C. S. Ey., 184 U. S. 368 ; Cleveland v. C. C. Ey., 194 id. 
517; Cleveland v. C. E. Ey., ihid. 538; cf. P. W. Co. v. Freeport, 180 id. 587; 
L. & N. E. V. Kentucky, 183 id. 503, 518. 

"^ C, B. & Q. E. V. Nebraska, 170 U. S. 57. 

"^Fertilizing Co. v. Hyde Park, 97 U. S. 659. 

»='Beer Co. v. Massachusetts, 97 U. S. 25. 

°* Stone V. Mississippi, 101 U. S. 814; Douglas v. Kentucky, 168 id. 488. 

=>' Butchers' Union v. C. C. Co., Ill U. S. 746. 

^ 4 Wheat. 629. 



CONTRACTS AS TO MATTEES OF PUBLIC CONCERN. 179 

not intend to restrain a state from the regulation of its 
civil institutions adopted for internal government." On 
this principle, there can be no implied contract on the 
part of a state that it will not amend its constitution, 
in so far as that constitution deals with the administration 
of the public concerns of the state.'''^ Nor can a state 
legislature bind subsequent legislatures as to the exercise 
of the powers of sovereignty over the political subdivi- 
sions of the state, and over its municipal corporations with 
regard to subject-matters of public and not of private 
interest, as, for instance, the location of a county seat,®^ 
or the boundaries of its municipalities,^^ or the sale of 
property held by a municipality for public purposes, such 
as water works,^°^ or the appropriation under state 
authority of municipal obligations by their holders as a 
set-off against municipal claims against those holders ; ^ 
nor does the appointment by the state of a public officer 
for a fixed term for a stipulated compensation constitute a 
contract between the state and the appointee whose obliga- 
tion is impaired by either the reduction of his compensa- 
tion or his removal from office,^ but after the duties have 
been performed by the appointee of a municipal corpora- 
tion during the term of his office there is a contract whose 
obligation is impaired by a subsequent statute abolishing 
the power of taxation for the payment of his compensa- 
tion.^ Of course, in the case of an officer appointed under 
a statute which in terms defines the tenure of the office to 



*' Church V. Kelsey, 121 TJ. S. 282. 
■^Newton v. Commissioners, 100 U. S. 548. 
"'U. S. V. Memphis, 97 U. S. 284. 
^•"New Orleans v. Morris, 105 U. S. 600. 

^ Amy V. Shelby County, 114 U. S. 387. 

^ Butler V. Pennsylvania, 10 How. 402 ; cf. Crenshaw v. U. S., 134 U. S. 
99; Pennie v. Eeis, 132 id. 464. 

' Fisk V. Jefferson Police Jury, 116 U. S. 131. 



180 IMPAIRMENT OF CONTRACTS. 

be according to law, a subsequent statute removing him 
is not an impairment of the contract.* 

The withdrawal by a state of its consent to be sued. 

75. The state's consent to be sued being voluntary and 
of grace, that consent does not constitute a contract whose 
obligation can be impaired by a subsequent repeal of the 
statute permitting such suit,^ especially where the statute 
authorizing the suit has provided no means for the en- 
forcement of any judgment that may be rendered against 
the state. Under such circumstances the state may, by 
subsequent legislation, withdraw its consent to be sued.® 
In this connection, that which was forcibly said by 
Mathews, J., in the judgment of the court in the case of 
In re Ayers,^ may well be borne in mind. The learned 
judge said : ''It cannot be doubted that the XI Amendment 
to the Constitution operates to create an important dis- 
tinction between contracts of a state with individuals 
and contracts between individual parties. In the case of 
contracts between individuals, the remedies for their en- 
forcement or breach, in existence at the time they were 
entered into, are a part of the agreement itself, and con- 
stitute a substantial part of its obligation.^ That obliga- 
tion . . . cannot be impaired by any subsequent legisla- 
tion. Thus, not only the covenants and conditions of the 
contract are preserved, but also the substance of the 
original remedies for its enforcement. It is different with 
contracts between individuals and a state. In respect to 
these, by virtue of the XI Amendment to the Constitution, 

*Head v. University, 19 Wall. 526. 

° Beers v. Arkansas, 20 How. 527 ; Bank of Washington v. Arkansas, 
ibid. 530. 

"E. Co. V. Tennessee, 101 U. S. 337; E. Co. v. Alabama, ibid. 832; 
Baltzer v. North Carolina, 161 id. 240. 

U23 U. S. 504. 

* Louisiana v. New Orleans, 102 U. S. 203. 



PEOHIBITION AS CONSTRUED BY SUPREME COURT. 181 

there being no remedy by a suit against the state, the con- 
tract is substantially without sanction, except that which 
arises out of the honour and good faith of the state itself, 
and these are not subject to coercion. Although the state 
may, at the inception of the contract, have consented as 
one of its conditions to subject itself to suit, it may subse- 
quently withdraw that consent and resume its original 
immunity, without any violation of the obligation of its 
contract in the constitutional sense. ' ' ^ Yet, as was 
pointed out by Bradley, J., in Hans v. Louisiana,^ *^ ''where 
property or rights are enjoyed under a grant or contract 
made by a state, they cannot wantonly be invaded. Whilst 
the state cannot be compelled by suit to perform its con- 
tracts, any attempt on its part to violate property or 
rights acquired under its contracts may be judicially re- 
sisted ; and any law impairing the obligation of contracts 
under which such property or rights are held is void and 
powerless to affect their enjoyment.^' 

The force and effect of the prohibition as construed by the 
Supreme Court. 

76. The force and effect of the prohibition, as con- 
strued by the court, is, that a state may not, by any law 
or by any act to which the state, by its enforcement 
thereof, gives the force of a law, deprive a party of the 
legal right of enforcing, or obtaining compensation for 
the breach of, an express contract, executed or executory, 
between individuals, or between a state and individuals, 
but a state may regulate or limit the remedies of the con- 
tracting parties, provided that it leaves in force a substan- 
tial part of the legal remedies which subsisted at the time 
of the making of the contract. 

•Beers v. Arkansas, 20 How. 527; E. Co. v. Tennessee, 101 TJ. S. 337. 
^"134 U. S. 1. See also McGahey v. Virginia, 135 id. 662. 



CHAPTEE VI. 

EX POST FACTO LAWS AND BILLS OF ATTAINDER. 

77. The constitutional provisions. 

78. The distinction between retrospective and ex post facto laws. 

79. Ex post facto laws defined. 

80. Illustrations of ex post facto laws. 

81. Illustrations of laws which are not ex post facto. 

82. Bills of attainder and bills of pains and penalties. 

The constitutional provisions. 

77. Section 10 of Article I of the Constitution declares 
that "no state shall . . . pass any bill of attainder or 
ex post facto law. ' ' Section 9 of Article I of the Constitu- 
tion, restricting the powers of Congress, declares that "no 
bill of attainder or ex post facto law shall be passed. ' ' 

The distinction between retrospective and ex post facto 
laws. 

78, Ex post facto laws relate to criminal, and not to 
civil, procedure.^ They are necessarily retrospective, but 
all retrospective laws are not ex post facto.^ State laws 
which operate retrospectively, or which divest anteced- 
ently vested rights of property, are not prohibited by the 
Constitution of the United States, if they are not ex post 
facto laws, and if they do not impair the obligation of con- 
tracts.^ A state legislature, unless restrained by the 

^Calder v. Bull, 3 Dall. 386; Watson v. Mercer, 8 Pet. 88, 110; Car- 
penter V. Pennsylvania, 17 How. 456; League v. Texas, 184 U. S. 156. 

^Calder v. Bull, 3 DaU. 386. 

^ Calder v. Bull, 3 Dall. 386 ; Fletcher v. Peck, 6 Cr. 138 ; Ogden v. Saun- 
ders, 12 Wheat. 266; Satterlee v. Matthewson, 2 Pet. 380; Watson v. 
Mercer, 8 Pet. 88, 110; Carpenter v. Pennsylvania, 17 How. 456; B. & 
S. R. V. Nesbit, 10 How. 395; Livingston v. Moore, 7 Pet. 469; League 
V. Texas, 184 U. S. 156. 

182 



RETROSPECTIVE AND EX POST FACTO LAWS. 183 

constitution of the state, may, therefore, enact statutes 
setting aside a decree of a court of probate, refusing to 
allow probate of a will, and granting a rehearing by the 
court of probate with liberty of appeal therefrom, after 
the time limited by existing laws for an appeal has 
passed ; ^ declaring that the relation of landlord and ten- 
ant exists between parties as to whom the courts of 
the state have decided that that relation does not exist ; ^ 
curing defective acknowledgments of deeds by femes 
covert ; ^ construing by a declaratory statute, after the 
death of a decedent, existing tax laws so as to subject to 
a collateral inheritance tax the distributive shares of non- 
resident distributees ; ^ directing a county court to set 
aside an inquisition condemning certain land for the use 
of a railway and to order a new inquisition ; * directing 
the imposition of a tax according to an assessment there- 
tofore made ; ^ authorizing the sale of lands on which the 
state has a lien for debts due to it ; ^^ and establishing new 
remedies for the collection of taxes already delinquent.^ ^ 
Upon the same principle. Congress having passed an act 
for the admission of a territory as a state, and having in 
that act omitted to provide for the disposal of causes 
pending in the Supreme Court of the United States on 
appeal from the territorial courts, may by a subsequent 
act properly make provision for such causes, for such 
legislation is remedial ; ^^ and it may provide for a review 
of the actions of a commission created by it, by a transfer 

* Calder v. Btdl, 3 DaU. 386. 

= Satterlee v. Matthewson, 2 Pet. 380. 

« Watson V. Mercer, 8 Pet. 88. 

' Carpenter v. Pennsylvania, 17 How. 456. 

^ B. & S. E. V. Nesbit, 10 How. 395. 

•Locke V. New Orleans, 4 Wall. 172. 
" Livingston v. Moore, 7 Pet. 469. 
" League v. Texas, 184 U. S. 156. 
"Freeborn v. Smith, 2 Wall. 160. 



184 EX POST EACTO LAWS. 

of its proceedings and decisions to judicial tribunals for 
examination and determination de novo}^ So also Con- 
gress may by statute impose a tax retrospectively.^* 

Ex post facto laws defined. 

79. In Fletcher v. Peck,^^ Marshall, C. J., defines an 
ex post facto law to be one ''which renders an act punish- 
able in a manner in which it was not punishable when it 
was committed." In Cummings v. Missouri/^ Field, J., 
defines an ex post facto law, as "one which imposes a 
punishment for an act which was not punishable at the 
time it was committed ; or imposes additional punishment 
to that then prescribed ; or changes the rules of evidence 
by which less or different testimony is sufficient to convict 
than was required." In Calder v. Bull,^'^ Chase, J., 
classified ex post facto laws as follows:— "^r^^, those that 
make an action, done before the passing of a law, and 
which was innocent when done, criminal, and punish such 
action; second, those that aggravate a crime, or make it 
greater than it was when committed; third, those that 
change the punishment and inflict greater punishment 
than the law annexed to the crime when committed ; and, 
fourth, those that alter the legal rules of evidence and 
receive less or different testimony to convict the offender 
than that required at the time of the commission of the 
offense. ' ' That classification has been repeatedly quoted 
with approval.^ ^ 

" Stephens v. Cherokee Nation, 174 U. S. 445. 
^* Stoekdale v. I. Cos., 20 Wall. 323. 
"6 Cr. 138. 
" 4 Wall. 325. 
"3 Call. 386. 

^^Kring v. Missouri, 107 U. S. 221; Duncan v. Missouri, 152 id. 377; 
Gibson v. Mississippi, 162 id. 565; Mallett v. North Carolina, 181 id. 589. 



ILLUSTBATIONS OF EX POST FACTO LAWS. 185 

Illustrations of ex post facto laws. 

80. Laws have been held to be ex post facto, which, 
after the commission of an act, alter the situation of the 
accused to his disadvantage, as, for instance, by providing 
that the plea of autrefois convict should not at a second 
trial be a defense in the case of a prisoner convicted of 
murder in the second degree under an indictment charging 
murder in the first degree, the law having been at the time 
of the commission of the crime that such a plea was a 
defense; ^^ or by requiring a clergyman,^^ or a lawyer, ^^ 
as a condition precedent to the practice of his profession, 
to take an oath that he has not done an act, for the doing 
of which, when done, deprivation of office was not a legal 
penalty; or by requiring one who applies to a court to 
open a judgment rendered against him in absentia, to take 
oath, as a condition precedent to his obtaining the desired 
relief, that he has not done an act for the doing of which 
the deprivation of the right to sue in courts of justice was 
not by law antecedently imposed as a penalty ; ^^ or by 
adding to the death penalty for murders already com- 
mitted, the withholding from the convict of all knowledge 
as to the date of his execution and the keeping of him in 
solitary confinement until that time ; ^^ or by reducing 
from twelve to eight the number of jurors necessary for 
the trial of felonies committed before the enactment of the 
law.^* In the case last cited it was pointed out that while, 
as a general rule, the accused has no vested rights in 
particular modes of procedure, yet he cannot be deprived 
of any right that was regarded, at the time of the adoption 

" Kring v. Missouri, 107 U. S. 221. 
'^'^ Cummings v. Missouri, 4 Wall. 277. 

"^Ex parte Garland, 4 WaU. 333. But see Hawker v. New York, 170 
r. S. 189. 

=== Pierce v. Carskadon, 16 WaU. 234. 
^ Medley, Petitioner, 134 U. S. 160. 
^* Thompson v. Utah, 170 U. S. 343. 



186 EX POST FACTO LAWS. 

of the Constitution, as vital for the protection of life and 
liberty, and which he enjoyed at the time of the commis- 
sion of the offense charged against him.^^ So also. Con- 
gress cannot provide, by statute, that an act, which is not 
an offense against the law at the time of its doing, may 
become such by a subsequent independent act with which 
it has no necessary connection; as, for instance, that 
subsequent bankruptcy, either voluntary or involuntary, 
shall render criminal and punishable by imprisonment 
the obtaining of goods with intent to defraud at any time 
within three months before the commission of the act of 
bankruptcy.^*^ 

Illustrations of laws which are not ex post facto. 

81. On the other hand, a law changing the venue in a 
criminal case, though passed subsequently to the com- 
mission of the offense, is not ex post facto; ^'^ nor is a law 
open to that objection, which, though passed after the com- 
mission of an offense, requires that the persons selected 
for jury service shall possess good intelligence, sound 
judgment and fair character, ^^ or which enlarges the class 
of persons who may be competent to testify as witnesses at 
the trial, as, for instance, by repealing a statutory prohi- 
bition of the admission of the testimony of convicted 
felons, ^^ or which provides that ' * comparison of a dis- 
puted writing with any writing proved to the satisfaction 
of the judge to be genuine, shall be permitted to be made 
by witnesses, and such writings and the evidence of wit- 
nesses respecting the same may be submitted to the court 
and jury as evidence of the genuineness or otherwise of the 

"'P. 352. 

-'U. S. V. Fox, 95 U. S. 670. 

" Gut V. The State, 9 Wall. 35 ; Cook v. U. S., 138 U. S. 157. 

^'Gibson v. Mississippi, 162 U. S. 565. 

="» Hopt V. Utali, 110 U. S. 574. 



BILLS OF ATTAINDER. 187 

writing in dispute, " ^^ or which allows to the prosecution 
an appeal from the superior to the supreme court of the 
state,^^ or which lessens the number of judges in the 
appellate court,^^ or which limits the number of spec- 
tators at executions for murder ; ^^ nor is a law ex post 
facto which denies the exercise of the right of franchise to 
bigamists, or polygamists, for 'Hhe disfranchisement 
operates upon the existing state and condition of the 
person, and not upon a past offense ; " ^'* nor is a law un- 
constitutional which prohibits the continuance of the 
practice of medicine by those who do not register them- 
selves in accordance with its provisions,^^ or which ex- 
cludes from the practice of medicine those who have been 
convicted of felonies prior to its enactment ; ^^ nor can 
constitutional objection be raised to a law which provides 
that whoever has been twice convicted of crime shall, upon 
conviction of a felony committed after the passage of the 
act, be deemed to be an habitual criminal, and be punished 
by imprisonment for twenty-five years.^^ While a law 
which endeavors to reach acts already committed and 
which provides a like punishment for the same act in the 
future is void in so far as it is retrospective, it is, however, 
valid as to offenses which are committed after its 
passage.^^ 

Bills of attainder and bills of pains and penalties. 

82. A bill of attainder is defined by Field, J., in Cum- 
mings V. Missouri,^^ as "a legislative act which inflicts 

'"Thompson v. Missouri, 171 U. S. 380. 
" Mallett V. North Carolina, 181 U. S. 589. 
'" Duncan v. Missouri, 152 U. S. 377. 
^Holden v. Minnesota, 137 U. S. 483. 
^ Murphy v. Eamsey, 114 U. S. 15. 
=^Eeetz V. Michigan, 188 U. S. 505, 
'"Hawker v. New York, 170 U. S. 189. 
" McDonald v. Massachusetts, 180 U. S. 311. 
"' Jaehne v. New York, 128 U. S. 189. 
^»4 Wall. 323. 
18 



188 EX POST FACTO LAWS. 

punishment without a judicial trial," and he adds, ''If the 
punishment be less than death, the act is termed a bill of 
pains and penalties. Within the meaning of the Constitu- 
tion, bills of attainder include bills of pains and 
penalties." It has been held that a state constitution 
requiring clergymen, as a condition precedent to the exer- 
cise of their profession, to take oath that they had not 
committed certain designated acts, some of which were 
at the time offenses subject to legal penalties, and others 
of which were innocent acts,*^ and that a state statute 
requiring one who applied to a court to open a judgment 
rendered against him in absentia, to take oath that he had 
not committed certain designated public offenses,*^ and 
that an act of Congress requiring a lawyer, as a condition 
precedent to the exercise of his profession, to take an oath 
that he had not voluntarily borne arms against the United 
States, etc., ^^ constituted in each case a bill of pains and 
penalties and was, therefore, subject to the constitutional 
prohibition against bills of attainder, inasmuch as, by 
legislative action, and without judicial investigation, the 
statute imposed a punishment for an act done before the 
enactment of the statute, the oath being offered to the 
party incriminated as a means of compelling an admission 
of guilt. 

*" Cummings v. Missouri, 4 Wall. 277. 
^ Pierce v. Carskadon, 16 Wall. 234. 
"^Ex parte Garland, 4 Wall. 333. 



CHAPTEB VII. 

THE PEOHIBITION OF STATE BILLS OF CREDIT. 

83. BiUs of credit defined. 

84. What are, and what are not, bills of credit. 

Bills of credit defined. 

83. Section 10 of Article I of the Constitution declares 
that ''no state shall . . . emit bills of credit." Bills of 
credit within the meaning of this constitutional provision 
are promissory notes issued by a state government on its 
credit ''intended to circulate throughout the community" 
for its ordinary purposes as money, ' ' and redeemable on 
demand, or at a day certain in the future.^ 

What are, and what are not, bills of credit. 

84. A state, therefore, may not issue interest-bearing 
certificates in denominations "not exceeding $10, nor less 
than 50 cents ' ' receivable by the state in payment of taxes, 
and of debts due to the state, and payable to officers of the 
state in discharge of salaries and fees of office, and re- 
deemable by the state under an arrangement that there 
shall be withdrawn "annually from circulation one-tenth 
part of the certificates."^ Nevertheless, a state may in- 
corporate a bank, of which that state shall be the sole 
shareholder, and it may authorize that bank to issue notes 
as circulation, without contravening the constitutional 
prohibition, the distinction being that such notes are 
issued, not on the credit of the state, but on the credit of 

^ Craig V. Missouri, 4 Pet. 411 ; Byrne v. Missouri, 8 id. 40 ; Briscoe v. 
Bank of Kentucky, 11 id. 257. 

- Craig V. Missouri, 4 Pet. 410 j Byrne v. Missouri, 8 id. 40. 

189 



190 PKOHIBITION OF STATE BILLS OP CEEDIT. 

the capital and assets of the bank.^ Coupons of state 
bonds, though negotiable and receivable for taxes due to 
the state,^ and warrants drawn in payment of appropria- 
tions made by the legislature, payable upon presentation 
if there be funds in the treasury, and issued to individuals 
in payment of debts due to them,^ cannot properly be 
called bills of credit, for they are not intended to circulate 
as money. 

* Briscoe v. Bank of Kentucky, 11 Pet. 257; Darrington v. The Bank of 
Alabama, 13 How. 12. 

* Virginia Coupons Case, 114 U. S. 269, 284. 
= H. & T. C. E. V. Texas, 177 U. S. 66, 89. 



CHAPTER VIII. 

STATE COMPACTS. 
85. What compacts are permitted, and what are forbidden. 

What compacts are permitted, and what are forbidden. 

85. Section 10 of Article I of the Constitution declares 
that "no state shall enter into any treaty, alliance, or 
confederation, . . . No state shall, without the consent of 
Congress, . . . enter into any agreement or compact with 
another state." This constitutional prohibition forbids 
compacts between a state and foreign nations, and also 
compacts between states of the United States, to which 
the assent of Congress has not been given. It is, there- 
fore, decisive against the validity of the confederation 
entered into by the insurgent states in 1861.^ It also 
forbids a governor of a state to enter into an agreement 
with a foreign government for the extradition of a 
prisoner.^ But states may, with the consent of Congress, 
enter into agreements touching conflicting boundaries,^ 
and, in such cases, the consent of Congress does not neces- 
sarily have to be given by congressional legislation ex- 
pressly assenting to each of the stipulations of the 
agreement between the states, but that consent may be 
inferred from the legislation of Congress touching the 

^ WiUiams v. Bruffy, 96 U. S. 176; Sprott v. U. S., 20 Wall. 459; Ford v. 
Surget, 97 U. S. 594; U. S. v. Keehler, 9 Wall. 83. 

^ Holmes v. Jennison, 14 Pet. 540. 

'Ehode Island v. Massachusetts, 12 Pet. 724; Missouri v. Iowa, 7 How. 
660; Florida v. Georgia, 17 id. 478; Alabama v. Georgia, 23 id. 505; Vir- 
ginia V. West Virginia, 11 Wall. 39; Poole v. Fleeger, 11 Pet. 185. 

191 



192 STATE COMPACTS. 

subject-matter of the agreement.* The prohibition of 
state compacts does not invalidate agreements entered 
into before the adoption of the Constitution.^ 

* Virginia v. West Virginia, 11 Wall. 39; Virginia v. Tennessee, 148 
U. S. 503; cf. St. L. & S. F. Ey. v. James, 161 id. 545, 562. 
« Wharton v. Wise, 153 U. S. 155. 



CHAPTER IX. 

FUGITIVES FEOM JUSTICE. 

86. The constitutional provision. 

87. The concurrent jurisdiction of the federal and state courts. 

The constitutional provision. 

86. Section 2 of Article IV of the Constitution declares 
that ' ' a person charged in any state with treason, felony, 
or other crime, who shall flee from justice and be found in 
another state, shall on demand of the executive authority 
of the state from which he fled, be delivered up, to be 
removed to the state having jurisdiction of the crime." 
The words 'treason, felony, or other crime," as Taney, 
C. J., said in Kentucky v. Dennison,^ ''in their plain and 
obvious import, as well as in their legal and technical 
sense, embrace every act forbidden and made punishable 
by a law of the state. The word ' crime ' of itself includes 
every offense, from the highest to the lowest in the grade 
of offenses, and includes what are called 'misdemeanors,' 
as well as treason and felony. ' ' ^ This constitutional pro- 
vision imposes on the executive of the state in which the 
fugitive has taken refuge the duty of surrendering the 
fugitive upon demand made by the executive of the state 
from which the fugitive has fled, and upon proof made 
that he has been legally charged with crime, and this 
duty has been recognized by the act of Congress of 12th 
February, 1793,^ but if the governor of the state to which 
the fugitive has fled refuses to deliver him up to justice, 

"■ 24 How. 99. 

- See also Ex parte Eeggel, 114 U. S. 642. 

*1 Stat. 302; Eev. Stat., sees. 5278, 5279. 

193 



194 FUGITIVES FEOM JUSTICE. 

'' there is no power delegated to the general government, 
either through the judicial department or any other de- 
partment, to use any coercive means to compel him. ' ' * 
The Supreme Court of the United States, therefore, will 
not issue a mandamus to compel the performance by a 
governor of a state of his constitutional duty of surrender- 
ing to another state a fugitive from the justice of thai 
state.^ This provision of the Constitution does not give 
to the person extradited any constitutional right to insist 
that he shall not be tried for any offense other than that 
set forth in the requisition papers without first having an 
opportunity to return to the state from which he was 
extradited.^ And a fugitive from justice who has been 
abducted from the state to which he fled may thereafter 
be tried in the state to which he has been forcibly carried, 
without violating any right or immunity secured to the 
accused by the Constitution of the United States.'^ 

The concurrent jurisdiction of the federal and state 
courts. 

87. An alleged fugitive from justice may petition a 
court of the United States for a writ of habeas corpus to 
inquire into the legality of his detention, but as the re- 
sponsibility of determining whether or not the alleged 
fugitive from justice be in fact a fugitive from justice, 
rests upon the executive of the state to which the fugitive 
has fled, a court of the United States will not discharge the 
fugitive upon the hearing of the writ of habeas corpus 
because, in its judgment the proof that the prisoner is a 
fugitive from justice is, though satisfactory to the 

* Per Taney, C. J., in Kentucky v. Dennison, 24 How. 109. 

^ Kentucky v. Dennison, 24 How. 66. 

^ Lascelles v. Georgia, 148 V. S. 537 ; cf. Cosgrove v. Winney, 174 id. 64. 

^Mahon v. Justice, 127 U. S. 700. 



JUEISDICTION OF PEDEKAL AND STATE COURTS. 195 

executive, not as complete as miglit have been required.^ 
When, however, it is shown conclusively that the accused 
was not within the state at the time the crime was com- 
mitted, he will be discharged upon the hearing of the 
writ.^ The alleged fugitive may also apply, by petition 
for a writ of habeas corpus, to a court of the state within 
which he is detained in custody of the purpose of being 
delivered to the justice of another state, for the jurisdic- 
tion of the courts of the United States over such petitions 
for writs of habeas corpus is not exclusive of the jurisdic- 
tion of the courts of the states in such cases, and the agent 
of the state demanding the surrender of the alleged 
fugitive is in no sense an officer of the United States, nor 
otherwise exempt from the process of the courts of the 
states.^ ^ 



^Ex parte Reggel, 114 U. S. 642; Roberts v. Reilly, 116 id. 80; Whitten 
V. Tomlinson, 160 id. 231. See also Cook v. Hart, 146 id. 183; Pearce v. 
Texas, 155 id. 311. 

» Hyatt V. People, 188 U. S. 691. 

^"Eobb V. Connolly, 111 U. S. 624. 



CHAPTER X. 

THE JUDICIAL POWEE. 

88. The constitutional provisions. 

89. The theory of a judicial system under the common law. 

90. The necessity of a federal judiciary. 

91. Cases in law and equity, etc. 

92. Cases affecting ambassadors, etc. 

93. Admiralty. 

94. Controversies to which the United States shall be a party. 

95. Controversies between citizens of different states. 

96. Controversies between two or more states. 

97. Controversies between a state and citizens of another state, etc. 

98. Federal jurisdiction. 

99. Exclusive and conciu-rent jurisdiction. 

100. The courts of the United States. 

101. Original jurisdiction. 

102. Appellate and supervisory jurisdiction. 

103. The necessity of a judicial "case." 

104. The federal judiciary. 

105. The federal supremacy. 

106. Constitutional and statutory construction. 

107. Judgments of courts. 

108. Treaties. 

109. The law administered in the federal covirts. 

110. Courts martial and impeachments. 

111. The IV Amendment. 

112. The V Amendment — (a) Due process of law; (&) Jeopardy, ete. 

113. The VI Amendment. 

114. The VII and VIII Amendments. 

115. The XI Amendment. 

116. The relations between the federal and state courts. 

117. The XIV Amendment as affecting state judicial proceedings. 

118. The "full faith and credit" clause. 

The constitutional provisions. 

88. Section 1 of Article III declares, that "the judicial 
power of the United States shall be vested in one Supreme 
Court, and in such inferior courts as the Congress may 
from time to time ordain and establish. The judges, both 
of the Supreme and inferior courts, shall hold their offices 

196 



THE CONSTITUTIONAL PROVISIONS. 197 

during good behaviour, and shall, at stated times, receive 
for their services a compensation, which shall not be 
diminished during their continuance in office. ' ' Section 2 
declares that "the judicial power shall extend to all cases, 
in law and equity, arising under this Constitution, the laws 
of the United States, and treaties made, or which shall be 
made, under their authority ; to all cases affecting ambas- 
sadors, other public ministers and consuls ; to all cases of 
admiralty and maritime jurisdiction; to controversies to 
which the United States shall be a party ; to controversies 
between two or more states ; between a state and citizens 
of another state ; between citizens of different states ; be- 
tween citizens of the same state claiming lands under 
grants of different states, and between a state, or the citi- 
zens thereof, and foreign states, citizens, or subjects. In 
all cases affecting ambassadors, other public ministers, 
and consuls, and those in which a state shall be party, the 
Supreme Court shall have original jurisdiction. In all 
the other cases before mentioned, the Supreme Court shall 
have appellate jurisdiction, both as to law and fact, with 
such exceptions, and under such regulations as the Con- 
gress shall make. The trial of all crimes, except in cases 
of impeachment, shall be by jury ; and such trial shall be 
held in the state where the said crime shall have been com- 
mitted ; but when not committed within any state, the trial 
shall be at such place or places as the Congress may by 
law have directed." 

Clause 2 of Article VI declares that 'Hhis Constitution 
and the laws of the United States which shall be made in 
pursuance thereof ; and all treaties made, or which shall be 
made, under the authority of the United States, shall be 
the supreme law of the land ; and the judges in every state 
shall be bound thereby, anything in the constitution or laws 
of any state to the contrary notwithstanding. ' ' 

The IV Amendment declares that ''the right of the peo- 



198 THE JUDICIAL POWER. 

pie to be secure in their persons, houses, papers, and 
effects, against unreasonable searches and seizures, shall 
not be violated, and no warrants shall issue, but upon 
probable cause, supported by oath or affirmation, and par- 
ticularly describing the place to be searched, and the per- 
sons or things to be seized. ' ' 

The V Amendment provides that "no person shall be 
held to answer for a capital, or otherwise infamous crime, 
unless on a presentment or indictment of a grand jury, 
except in cases arising in the land or naval. forces, or in 
the militia, when in actual service in time of war or public 
danger ; nor shall any person be subject for the same of- 
fense to be twice put in jeopardy of life and limb ; nor shall 
be compelled in any criminal case to be a witness against 
himself, nor be deprived of life, liberty, or property, with- 
out due process of law ; nor shall private property be taken 
for public use, without just compensation. " 

The VI Amendment provides that "in all criminal pros- 
ecutions, the accused shall enjoy the right to a speedy and 
public trial, by an impartial jury of the state and district 
wherein the crime shall have been committed, which dis- 
trict shall have been previously ascertained by law, and 
to be informed of the nature and cause of the accusation ; 
to be confronted with the witnesses against him; to have 
compulsory process for obtaining witnesses in his favour, 
and to have the assistance of counsel for his defense." 

The VII Amendment provides that "in suits at common 
law, where the value in controversy shall exceed twenty 
dollars, the right of trial by jury shall be preserved, and 
no fact tried by a jury shall be otherwise re-examined in 
any court of the United States, than according to the rules 
of the common law. ' ^ 

The VIII Amendment provides that "excessive bail 
shall not be required, nor excessive fines imposed, nor 
cruel and unusual punishments inflicted." 



JUDICIAL SYSTEM UNDER THE COMMON LAW. 199 

The XI Amendment provides that ''the judicial power 
of the United States shall not be construed to extend to any 
suit in law or equity, commenced or prosecuted against 
one of the United States by citizens of another state, or by 
citizens or subjects of any foreign state. ' ' 

The theory of a judicial system under the common law. 

89. Many of the men who, as members of the Conven- 
tion of 1787, participated in the framing of the Consti- 
tution were lawyers, who had been trained in, and had 
mastered, the principles of the common law. When the 
Convention had determined that there should be a judicial 
department of the government of the United States, those 
lawj^ers naturally found in the common law the principles 
of administration which they deemed it wise to adopt. If 
they had been asked to formulate those principles they 
would have stated them substantially as follows : 

It is the duty of every civilized government to pro- 
vide tribunals for the punishment of crimes and for the 
final determination of private controversies between indi- 
viduals. The accusation cannot be accepted as proof of 
the prisoner's guilt, nor can the statement of a claim by 
one individual against another be received as conclusive 
evidence of its validity. In each case there must be an 
inquiry by a tribunal before whom the respective parties 
can appear, to whom they can submit the evidence and the 
arguments on which they respectively rely, and who shall 
authoritatively decide the controversy. 

There are certain requirements of justice so obviously 
true that they do not need to be vindicated by argument, 
and so essential to the liberty of the citizen that their 
presence or absence is, in itself, a conclusive test of the 
existence of free institutions. Those requirements are 
purity, impartiality, and intelligence of administration, 
with as much rapidity of operation as is consistent with 



200 THE JUDICIAL POWER. 

the attainment of a correct result. To that end every de- 
fendant who is accused of crime, or against whom a claim 
is attempted to be enforced by civil process, is entitled to 
an examination by an independent authority to determine, 
upon a prima facie presentation of the case and of the evi- 
dence supporting the charge, whether there should, or 
should not, be a trial ; to due notice of the time and place of 
trial; to information of the precise charge against him; 
to a reasonable time in which to prepare his defense; to 
be confronted with the witnesses against him ; to have full 
opportunity of testing, by cross-examination, the testi- 
mony of those witnesses ; to have compulsory process for 
the production of witnesses on his behalf ; and to be fully 
heard in his defense, at his option, either personally or by 
learned counsel of his own selection. 

Every civil action and every criminal prosecution in- 
volve two questions : first, of fact ; did the defendant do, or 
not do, the act with whose commission or omission he is 
charged 1 Second, of law ; is that act forbidden, and if so, 
what is the nature of the remedy to be given to the plain- 
tiff, or the punishment to be inflicted upon the defendant? 
It is clearly not necessary that these two questions should 
be determined at the same time, nor even by the same tri- 
bunal. On the contrary, it often is convenient to dispose 
of the question of law in the first instance. The defendant 
may say that, admitting for the sake of argument the fact 
that is charged against him, it yet does not constitute a 
subject of legal action against him. That preliminary 
question can then be determined, resulting, if in favour 
of the defendant, in the dismissal of the proceedings at 
that point, or, if adversely to him, settling the law as ap- 
plicable to the facts, if they be found, upon subsequent in- 
quiry, to be such as alleged against him. It is also clear 
that, while in either case the tribunal ought to act with 
integrity, and to that end must be guarded against corrup- 



JUDICIAL SYSTEM UNDER THE COMMON LAW. 201 

tion and the perturbing pressure of extraneous circum- 
stances and undue influence brought to bear on behalf of 
either party, yet, as the question is of the one class or the 
other, different qualifications in the tribunal will be of 
greater, or less, importance in attaining a correct result. 
If the question be one of law, it is of chief importance that 
the tribunal have a competent knowledge of law, and pos- 
sess that trained judicial discretion which will enable it to 
correctly construe statutes, and to estimate the relative 
weight and value of conflicting authorities and precedents. 
If, on the other hand, the question be one of fact, it is more 
important that the tribunal should be so constituted as to 
bring to bear upon the subject that experience which can 
only be gained in the pursuits of active life, and should 
take as nearly possible that plain common-sense view of 
the matter which the parties to the controversy would be 
likely to take if they were not biased by their interest in 
the result. It is certain that, as an aid to the correct deter- 
mination of a question of fact, a knowledge of law is of no 
use, except in so far as the study of the law as a science has 
developed the mind and enlarged its powers, but any ad- 
vantage from that source is more than counterbalanced by 
the tendency of studious and contemplative minds to sub- 
stitute an imaginary world, peopled with fictitious beings 
and animated by artificial motives, for the real world in 
which we live, and, by the influence of professional, and 
especially judicial, training in the application of technical 
rules and in reasoning by analogy, to cause an undue sub- 
ordination of fact to theory. This tribunal, as I have in 
general terms described it, is that which the common law, 
in its wisdom, has provided in its system of trial by jury. 
"Wherever and whenever that system has been honestly 
and intelligently applied, it has not indeed been infallible 
in its determinations, nor has it achieved ideal justice, for 
it shares in that imperfection which is common to all insti- 



202 THE JUDICIAL POWER. 

tutions which are of human origin and operated by finite 
agencies, but it has in the vast majority of cases done sub- 
stantial justice. Wherever and whenever that system has 
seemed to fail, it has so seemed because the judge has not 
been sufficiently learned and able, or because the jury has 
not been of average intelligence, or because the judge has 
not performed his proper functions, or has permitted the 
jury to disregard theirs. 

If the judge who presides at the trial be intelligent, cour- 
ageous, and of sufficient decision of character, he will, by 
the application of the rules of evidence, prevent the minds 
of the jury from being diverted from the true point of in- 
quiry, he will submit questions to them only upon adequate 
proof, and he will, in his charge, put clearly and unmis- 
takably before them the precise questions of fact which it 
is their province to determine, and by his instructions upon 
the law of the case, conveyed in clear terms, and laid down 
with firmness and decision, he will prevent them from 
being swayed by extraneous circumstances, and from mis- 
apprehending either the question in the case, the evidence 
relevant to it, or the rules of law controlling their decis- 
ion. On the other hand, a judge, however honest in inten- 
tion, who talks and does not listen, who yields to hasty and 
ill-considered views of the testimony of witnesses, who an- 
ticipates the arguments of counsel, who is vacillating and 
indecisive in his determinations upon questions of evi- 
dence, or who either does not take clear views of the law 
applicable to the case, or fails to impress upon the jury, 
with force and energy, the law which they must apply, is a 
serious obstruction to the administration of justice. 

So also is it essential that the jurors be impartial, biased 
neither by relation to the parties, by interest in the result 
of the contest, nor by prejudice, and that they should be 
of at least average intelligence. There is no magic in the 
jury box to dissipate the mists of prejudice, nor to convert 



THE NECESSITY OF A FEDERAL. JUDICIAET. 203 

ignorance into knowledge, nor stupidity into sense. Men 
of insufficient intelligence cannot be expected to decide cor- 
rectly questions of fact, either simple or complicated. 

There must also -be a supervisory body to determine 
whether or not justice requires that the party against 
whom judgTQent shall have been given should have a new 
trial upon the facts, either because of error in the tribunal 
in its application of the law, or in its admission or re- 
jection of evidence, or in deciding against the weight of 
the evidence, or because of the subsequent discovery of 
new evidence which, if produced at the trial and if be- 
lieved by the tribunal of the first instance, ought, in 
justice, to have led to a different verdict. 

There must also be an appellate tribunal, not to give the 
unsuccessful litigant a second chance, nor to retry the case 
upon the facts, but to review the record of the case and to 
set aside the judgment, if in its entry the principles of jus- 
tice, or the rules of law, have been violated; or to remit 
the cause to the lower court for retrial, if that court shall 
be found to have erred in the admission or rejection of 
evidence, or if the evidence for the prosecution, taken as a 
whole, and assuming its truth, and drawing all the infer- 
ences that can be drawn from it, is legally insufficient to 
justify the judgment. It has been found in all civilized 
countries that an appellate tribunal is essential to the 
maintenance of uniformity in the administration of the 
law, and to the prevention of tyranny and caprice in the 
judges of the courts of first instance. 

The necessity of a federal judiciary. 

90. Having regard to the relation between the United 

States and the states, and bearing in mind that the United 

States cannot impose duties upon officers of the states, and 

compel the performance by those officers of the duties so 
i4 



204 THE JUDICIAL POWEE. 

imposed,^ it is, in an especial degree, essential that tlie 
United States should have the power of establishing courts 
of civil and criminal jurisdiction for the punishment of 
offenses against the laws of the United States, and for the 
protection and enforcement of rights created by the Con- 
stitution, laws, and treaties of the United States. It is 
also necessary to the enforcement of the declared su- 
premacy of the Constitution, laws, and treaties of the 
United States, that a court constituted by the United 
States with jurisdiction co-extensive with the territory 
subject to the Constitution, should be, so far as regards 
all subjects of judicial cognizance, the final arbiter by 
whom the construction of the Constitution of the United 
States is to be authoritatively determined,^ for otherwise 
the Constitution might have one meaning in one state, and 
a different meaning in another state, and it might be con- 
strued in one way in one court and in another way in an- 
other court,^ and if the legislative, executive, and judicial 
departments of the several states were at liberty to con- 
clusively determine for themselves the construction of that 
instrument, and the nature and the extent of the restraints 
upon freedom of state action imposed by it, those re- 
straints would bind any one state only in so far as that 
state might choose to be bound at any particular time, and 
the inevitable result would be, as Marshall, C. J., said in 
Cohens v. Virginia,^ to prostrate the federal ''government 
and its laws at the feet of every state in the Union, ' ' The 
framers of the Constitution also deemed it necessary, in 

1 Prigg V. Pennsylvania, 16 Pet. 539 ; Kentucky v. Dennison, 24 How. 66. 

" Cohens v. Virginia, 6 Wheat. 264 ; Bank of Hamilton v. Dudley 's Lessee, 
2 Pet. 492, 524; Dodge v. Woolsey, 18 How. 331, 347; Martin v. Hunter's 
Lessee, 1 Wheat. 304; Missouri v. Andriano, 138 U. S. 496; Connolly v. 
U. S. P. Co., 184 id. 540. 

^ Marbury v. Madison, 1 Cr. 137; Van Home's Lessee v. Dorrance, 2 Dall. 
304; The Mayor v. Cooper, 6 Wall. 247; Norton v. Shelby Coimty, 118 U. S. 
425. 

*6 Wheat. 385. 



CASES IN LAW AND EQUITY, ETC. 205 

order to guard against possible prejudice in the courts of 
the states as affecting citizens of other states, when liti- 
gants in those courts, that every citizen of a state should, 
when suing a citizen of another state, have the option of 
bringing his action in the federal court within that other 
state, or in the court of the state, as might seem advisable 
to him. 

The Constitution has, therefore, conferred upon the 
courts of the United States jurisdiction in two classes of 
causes, depending in the one class on the character of the 
cause, and in the other class on the character of the 
parties.^ 

Cases in law and equity, etc. 

91. ' ' Cases, in law and equity, arising under this Con- 
stitution, the laws of the United States, and treaties made, 
or which shall be made, under their authority" include all 
subject-matters of litigation, civil or criminal, whose de- 
termination requires the application or construction of the 
Constitution, laws, or treaties of the United States. A 
suit brought against a state by one of its own citizens can- 
not be maintained under this provision of the Consti- 
tution.^ As Strong, J., said,^ "A case consists of the right 
of one party, as well as of the other, and may truly be said 
to arise under the Constitution, or a law, or a treaty of 
the United States, whenever its correct decision depends 
upon the construction of either. Cases arising under the 
laws of the United States are such as grow out of the legis- 
lation of Congress, whenever they constitute the right, or 
privilege, or claim, or protection, or defense of the party, 
in whole or in part, by whom they are asserted." Fuller, 

' Chisholm v. Georgia, 2 Dall. 419, 475 ; Cohens v. Virginia, 6 Wheat. 264, 
378; Martin v. Hunter's Lessee, 1 Wheat. 304, 331, 343; The Moses Taylor, 
4 Wall. 411, 429. 

* Hans V. Louisiana, 134 TJ. S. 1. 

' Tennessee v. Davis, 100 U. S. 257, 264. 



206 THE JUDICIAL. POWER. 

C. J., has also said forcibly^ that if in the cause, '4t 
appears that some title, right, privilege, or immunity on 
which the recovery depends will be defeated by one con- 
struction of the Constitution or a law of the United States, 
or sustained by the opposite construction, then the case is 
one arising under the Constitution or laws of the United 
States. "« 

Cases affecting ambassadors, etc. 

92. "Cases affecting ambassadors, other public minis- 
ters, and consuls" are cases to which such officers are 
parties, or so far privies, that the determination thereof 
will conclude their rights. ^*^ 

Admiralty. 

93. "Cases of admiralty and maritime jurisdiction" 
comprehend litigated cases with regard to acts done and 

« Cooke V. Avery, 147 U. S. 375, 384. 

* See also Cohens v. Virginia, 6 Wheat. 264, 379; Osborn v. Bank of the 
U. S., 9 id. 738, 824; The Mayor v. Cooper, 6 Wall. 247, 252; G.-W. & W. 
Co, V. Keyes, 96 U. S. 199, 201 ; E. Co. v. Mississippi, 102 id. 135, 140 ; Ames 
V. Kansas, 111 id. 449, 462; K. P. E. v. A., T. & S. F. E., 112 id. 414, 416; 
Provident Savings Society v. Ford, 114 id. 635; P. E. Eemoval Cases, 115 id. 
1 ; Metcalf v. Watertown, 128 id. 586 ; Burthe v. Denis, 133 id. 514 ; Bock v. 
Perkins, 139 id. 628 ; Mitchell v. Smale, 140 id. 406 ; Cooke v. Avery, 147 id. 
375; Belden v. Chase, 150 id. 674; N. P. E. v. Colburn, 164 id. 383; In re 
Lennon, 166 id. 548; A. Ex. Co. v. Michigan, 177 id. 404; W. U. T. Co. v. 
A. A. E., 178 id. 239; Lampasas v. Bell, 180 id. 276; Tullock v. Mulvane, 
184 id. 497 ; Fatten v. Brady, ibid. 608 ; Howard v. U. S., ibid. 676 ; V. W. 
Co. V. Vieksburg, 185 id. 65; Filhiol v. Maurice, ibid. 108; Talbot v. S. C. 
First Nat. Bank, ibid. 172; Swafford v. Templeton, ibid. 487; Marsh v. N., 
S. & Co., 140 id. 344; Holt v. I. Mfg. Co., 176 id. 68; Arkansas v. K. & T. C. 
Co., 183 id. 185 ; C. C. D. Co. v. Ohio, ibid. 238 ; N. F. & P. W. v. O. W. S. 
Co., ibid. 216; F.-G. L. S. Co. v. Springer, 185 id. 47; Kennard v. Nebraska, 
186 id. 304; Sawyer v. Piper, 189 id. 154. For cases affecting officers of 
the United States see In re Neagle, 135 U. S. 1; Sonnentheil v. M. B. Co., 
172 id. 401; Bausman v. Dixon, 173 id. 113; Auten v. U. S. Nat. Bank, 174 
id. 125 ; Boske v. Comingore, 177 id. 459 ; Gableman v. P., D. & E. Ey., 179 
id. 335. For cases affecting corporations created by the United States see 
N. P. E. V. Amato, 144 U. S. 465 ; T. & P. Ey. v. Cody, 166 id. 606. 

"U. S. V. Ortega, 11 Wheat. 467; Blyew v. U. S., 13 Wall. 581. 



ADMIRALTY. 207 

rights created, or contracts to be performed, -upon the high 
seas or inland navigable waters, or with regard to con- 
tracts for the transportation of passengers or goods on 
the high seas or on navigable waters between different 
states. The courts of the United States have, therefore, 
full jurisdiction in admiralty, and, as Bradley, J., said,^^ 
''the boundaries and limits of the admiralty and maritime 
jurisdiction are matters of judicial cognizance, and cannot 
be affected or controlled by legislation, whether state or 
national.^ ^ But within these boundaries and limits the law 
itself is that which has always been received as maritime 
law in this country, with such amendments and modifica- 
tions as Congress may from time to time have adopted. ' ' 

The judicial power, being defined by the Constitution, 
cannot be extended by legislation under the guise of a 
regulation of commerce, for the legislative regulation of 
any subject-matter of jurisdiction is in its nature essen- 
tially distinct from the creation of a tribunal and the 
vesting in that tribunal of jurisdiction over any particular 
subject-matter.^^ Congress may legislate as to maritime 
torts,^^ and maritime contracts. Ships navigating the 
high seas, though in the prosecution of commerce between 
two ports of the same state, are subject to the federal 
power of regulation, and may therefore have the benefit 
of the limitation of liability under the statutes of the 
United States,^ ^ and the limited liability statutes now ex- 
tend to all vessels used in navigation of inland waters.^® 
While states cannot create maritime liens, nor confer juris- 
diction upon their courts for the enforcement of such 

" In re Garnett, 141 U. S. 1, 14. 

^ The St. Lawrence, 1 Bl. 522, 6, 7 ; The Lottawanna, 21 Wall. 558, 575. 
^» The Genesee Chief v. Titzhugh, 12 How. 443, 452. 
'* In re Garnett, 141 U. S. 1 ; Workman v. New York, 179 id. 552. 
^° Eev. Stat. Sees. 4283 and 4289 ; Lord v. G. N. & P. S. S. Co., 102 U. S. 
541. 

'"Act of 19th June, 1886; 24 Stat. 80, 81; In re Garnett, 141 U. S. 1. 



208 THE JUDICIAL POWER. 

liens,^^ nor authorize their courts to entertain suits for 
damages for the breach of contracts for transportation of 
passengers on the high seas/^ nor proceedings in rem in 
collision cases on navigable waters/^ yet, as the general 
maritime law does not recognize liens in favour of mate- 
rial men for supplies furnished to vessels in their home 
ports, or for materials sold for ships in process of con- 
struction, the states may by statute authorize liens there- 
for, which may be enforced by proceedings in rem in the 
admiralty courts of the United States.^*^ On the same 
principle, as both at common law and in admiralty the 
right of action for a tort is personal and dies with the per- 
son injured, and no action is maintainable theref or,^^ the 
right of action in such cases when conferred by a state 
statute is enforcible in a state court in a case of death 
caused by collision in navigable waters which are within 
the jurisdiction of the state, and it is also enforcible when 
the navigable waters are also within the admiralty juris- 
diction of the United States ^^ in the courts of the 
United States on the admiralty side,^^ and also on 
the law side.^* In England navigable waters are, in law, 
only those in which the tide ebbs and flows; and, in 
that country, the admiralty jurisdiction is further re- 
stricted by the requirement that the locus in quo, though 
within the ebb and flow of the tide, should not be infra 
corpus comitatus nor at sea infra fauces terrce. In certain 

" The Belfast, 7 Wall. 624; Moran v. Sturges, 154 U. S. 256; The Eoanoke, 
189 id. 185 ; The E. W. Parsons, 191 id. 17. 

" The Moses Taylor, 4 Wall. 411. 

^^ The Hine v. Trevor, 4 Wall. 555. 

"-» Edwards v. Elliott, 21 Wall. 532 ; The Lottawanna, ibid. 558 ; The Kate, 
164 U. S. 458; The E. W. Parsons, 191 id. 17. 

-'■ Higgins V. Butcher, Yelv. 89 ; Ex parte Gordon, 104 U. S. 515. 

='S. Co. V. Chase, 16 Wall. 522; Sherlock v. AUing, 93 U. S. 99; Butler 
V. B. & S. S. Co., 130 id. 527. 

-^ Ex parte Gordon, 104 U. S. 515; Ex parte Ferry Co., ibid. 519. 

-' Ey. Co. V. Whitton, 13 Wall. 270. 



THE UNITED STATES A PARTY. 209 

of the earlier cases in this country the English test of navi- 
gability in a legal sense was applied, but, as the reason of 
the rule failed here, and as its adoption would have taken 
out of the jurisdiction of admiralty the inland waters and 
many rivers which are in fact navigable but where there 
is no ebb or flow of the tide, the 9th section of the Judiciary 
Act of 1789 constituted navigability in fact the test of 
navigability in law, and the later cases have followed that 
statutory rule.^^ 

Controversies to which the United States shall be a party. 
94. The phrase '' controversies to which the United 
States shall be a party" requires no elucidation further 
than to note that the United States, as a sovereignty, can- 
not be sued without its own consent,^^ and the constitu- 
tional provision does not impose upon Congress any duty 
to constitute tribunals to take cognizance of claims against 
the United States. Under this provision the United States 
may bring suit against a state in the Supreme Court of 
the United States, but, by reason of the state being a sov- 
ereignty, interest upon the principal found to be due by 
the state will not be awarded, unless its consent to pay 
interest has been given by its legislative, or executive, 
act.^"^ 

^'^The Genesee Chief v. Fitzhugh, 12 How. 443; Hobart v. Drogan, 10 
Pet. 108; Waring v. Clarke, 5 How. 441; N. J. N. Co. v. Merchants' Bank, 
6 id. 344; Fretz v. BuU, 12 id. 466; Allen v. Newberry, 21 id. 244; Maguire 
V. Card, iUd. 248 ; The St. Lawrence, 1 Bl. 522 ; The Moses Taylor, 4 Wall. 
411; The Hine v. Trevor, ihid. 555; The Belfast, 7 id. 624; The Eagle, 8 id. 
15; The Daniel Ball, 10 id. 557; The Montello, 20 id. 430; Butler v. B, & S. 
S. Co., 130 U. S. 527; Belden v. Chase, 150 id. 674; Moran v. Sturges, 
154 id. 256; P. E. v. Napier S. Co., 166 id. 280; The Glide, 167 id. 606; 
Workman v. New York, 179 id. 552 ; The E. W. Parsons, 191 id. 17. 

^"McElrath v. U. S., 102 U. S. 426; Schillinger v. V. S., 155 id. 163; 
Belknap v. Schild, 161 id. 10; Stanley v. Schwalby, 162 id. 255; Ainsa v. 
U. S., 184 id. 639 ; Bigby v. U. S., 188 id. 400. See also 24 Stat. 505, c. 359. 

" U. S. V. North Carolina, 136 U. S. 211. See U. S. v. Michigan, 190 id. 
379. 



210 THE JUDICIAL POWEE. 

Controversies between citizens of different states. 

95. The phrase, controversies "between citizens of dif- 
ferent states," vests in the courts of the United States 
jurisdiction over all proceedings in personam between 
such parties. As Marshall, C. J., said in Cohens v. Vir- 
ginia,^* ' ' If these be the parties, it is entirely unimportant 
what may be the subject of controversy. Be it what it 
may, these parties have a constitutional right to come into 
the courts of the Union ; ' ' and as Field, J., said in Gaines 
V. Fuentes,^^ "It rests entirely with Congress to determine 
at what time the power may be invoked, and upon what 
conditions." ^" 

A citizen of a territory, or of the District of Columbia, 
cannot sue under this clause,^^ nor can a state.^^ That 
jurisdiction which is dependent on the character of the 
parties does not include proceedings in rem, or quasi in 
rem, such as questions of probate,^^ or actions for 
divorce.^* 

'^ 6 Wheat. 378. 

-^ 92 U. S. 10, 18. 

'» See also Payne v. Hook, 7 Wall. 425 ; Hyde v. Stone, 20 How. 170, 175 ; 
Ey. Co. V. Whitton, 13 Wall. 270, 287; Boom Co. v. Patterson, 98 U. S. 
403; Dennick v. E. Co., 103 id. 11; Ex parte Boyd, 105 id. 647; Koenigs- 
berger v. E. S. M. Co., 158 id. 41 ; St. L. & S. F. Ey. v. James, 161 id. 545 ; 
St. J. & G. I. E. V. Steele, 167 id. 659. The law applied in controversies be- 
tween citizens of different states is discussed by Professor Pepper in "Bor- 
derland of Federal and State Decisions," and infra, sec. 109. And see 
Bucher v. C. E., 125 U. S. 555 ; Friedlander v. T. & P. Ey., 130 id. 416 ; Clark 
V. Bever, 139 id. 96 ; Scott v. Neely, 140 id. 106 ; Cross v. Allen, 141 id. 528 ; 
EUenwood v. M. C. Co., 158 id. 105 ; H. P. I. Co. v. C, M. & St. P. Ey., 175 
id. 91 ; Dooley v. Pease, 180 id. 126 ; W. U. T. Co.t;. C. P. Co., 181 id. 92. 

» Barney v. Baltimore, 6 Wall. 280; Cameron v. Hodges, 127 U. S. 322; 
Koenigsberger v. E. S. M. Co., 158 id. 41; Hooe v. Jamieson, 166 id. 395. 

«^ P. T. C. Co. V. Alabama, 155 U. S. 482 ; Arkansas v. K. & T. C. Co., 183 
id. 185 ; cf. M., K. & T. Ey. v. Missoiu-i E. & W. Comrs., ibid. 53. 

^ Fouvergne v. New Orleans, 18 How. 470 ; Byers v. McAuley, 149 17. S. 
608; Clarke v. Clarke, 178 id. 186; cf. Clark v. Bever, 139 id. 96; Hayes v. 
Pratt, 147 id. 557. See also EUenwood v. M. C. Co., 158 id. 105 ; S. T. Co. 
V. B. E. Nat. Bank, 187 id. 211. 

^* Barber v. Barber, 21 How. 582. 



CONTEOVERSIES BETWEEN STATES. 211 

Controversies between two or more states, etc. 

96. The phrases "controversies between two or more 
states . . . between citizens of the same state claiming 
lands under grants of different states ' ' seem to be unam- 
biguous. The cases of suits between states have been 
mainly controversies as to conflicting boundaries,^^ and in 
these cases there is no doubt as to the jurisdiction. In 
1790 it was assumed ^^ that the courts had jurisdiction of 
a bill filed by one state against another state and grantees 
of that other state to enjoin ejectment suits by those 
grantees with regard to land, political jurisdiction over 
which was claimed by both states, but judgment was en- 
tered in favour of the defendant state on the ground that 
the plaintiff state had no property interest in the deter- 
mination of the ejectment suits. It has since been held 
that a state cannot, upon an allegation of a violation of an 
interstate compact, enjoin another state and officers of the 
United States from diverting the water of a navigable 
river as a result of an improvement of navigation under 
congressional authority ; ^^ nor can a state in a suit against 
a municipality of another state, enjoin an improvement of 
navigation because of an apprehended diversion of trade 
from one of its municipalities to the defendant munici- 
pality ; ^^ nor can a state having assumed the collection of 
a debt due to one of its citizens by another state sue in its 
own name that other state ; ^^ nor can a state in an action 

^New Jersey v. New York, 5 Pet. 284; Ehode Island v. Massachusetts; 
12 id. 657, 724; Missouri v. Iowa, 7 How. 660; Florida v. Georgia, 11 id. 293, 
17 id. 478; Alabama v. Georgia, 23 id. 505; Virginia v. West Virginia, 11 
WaU. 39; Indiana v. Kentvicky, 136 U. S. 479; Nebraska v. Iowa, 145 id. 519; 
Iowa V. Illinois, 147 id. 1 ; Virginia v. Tennessee, 148 id. 503 ; Tennessee v. 
Virginia, 177 id. 501. 

^^ New York v. Connecticut, 4 Dall. 1. 

^' South Carolina v. Georgia, 93 U. S. 4. 

^ Wisconsin v. Duluth, 96 U. S. 379. 

'* New Hampshire v. Louisiana, 108 U. S. 76 ; cf. South Dakota v. North 
Carolina, 192 id. 286. 



212 THE JUDICIAL POWEE. 

against a corporation organized under the laws of an- 
other state invoke the exercise of the original jurisdiction 
of the Supreme Court to compel the payment of a penalty 
for a violation of the law of the plaintiff state ; ^*^ nor 
enjoin the enforcement of the laws of another state upon 
an allegation that those laws, if executed, will build up 
the commerce of cities of the defendant state to the 
injury of the commerce of the plaintiff state.^^ On the 
other hand, a state may invoke the original jurisdiction 
of the court by a bill against another state and a sanitary 
agency thereof to enjoin the discharge of sewage into a 
river flowing through the plaintiff state,^? the ground of 
decision being that the relief prayed is the abatement of 
a nuisance injurious to the health of citizens of the plain- 
tiff state, which can properly sue as parens patriae. So 
also a bill may be filed by a state on behalf of her citizens, 
as well as in vindication of her rights as an individual 
owner, to restrain another state from depriving it of the 
waters of a river accustomed to flow through and across 
its territory, and the consequent destruction of the prop- 
erty of herself and her citizens, and injury to their health 
and comfort.''^ The original jurisdiction extends to a suit 
by a state as the donee of certain bonds issued by another 
state, and secured by a mortgage of railroad stock belong- 
ing to the latter state, to compel payment of the bonds and 
a subjection of the mortgaged property to the satisfaction 
of the debt.^^ And that jurisdiction also extends to an 
action by a state against an officer of the United States, 

*" Wisconsin v. P. I. Co., 127 U. S. 265. 

^ Louisiana v. Texas, 176 U. S. 1, 17, 18. 

■'- Missouri v. Illinois, 180 U. S. 208 ; Fuller, C. J., and Harlan and White, 
JJ., dissented. 

" Kansas v. Colorado, 185 U. S. 125. 

*•* South Dakota v. North Carolina, 192 U. S. 286 ; White, J., Fuller, C. J., 
and McKenna and Day, JJ., dissented. 



CONTEOVEESIES BETWEEN STATE AND CITIZENS. 213 

where the United States is the real party in interest ad- 
verse to the state.^^ 

It has, however, been held that as the United States ''has 
no power to impose on a state officer, as such, any duty 
whatever, and compel him to perform it, " a state cannot, 
by a suit against the governor of another state, compel 
the performance of a ''duty" by an officer of that other 
state, for ' ' there is no power delegated to the general gov- 
ernment, either through the judicial department, or any 
other department, to use any coercive means to compel 
him. ' ' *^ An Indian tribe within the United States, being 
a "domestic dependent nation," and not a state, can- 
not bring suit against a state under this clause of the 
Constitution.*^ 

Controversies between a state and citizens of another 
state, etc. 

97. The clauses of the constitutional provision, giving 
jurisdiction to the courts of the United States in ' ' contro- 
versies . . . between a state and citizens of another state 
. . . and between a state or the citizens thereof, and for- 
eign states, citizens, or subjects, ' ' were, at an early day in 
the history of the government, the subject of much contro- 
versy. There has never been much question as to the 
jurisdiction in causes in which a state was the plaintiff ; *^ 
in such cases it has been denied only in an action to recover 
on a judgment for a penalty for a violation of municipal 
law,*^ and in actions in which it was necessary to join 
citizens of the plaintiff state as parties defendant ; ^^ but 
the jurisdiction was earnestly contested in cases in which 

■"Minnesota v. Hitchcock, 185 U. S. 373. See U. S. v. Michigan, 190 id. 
396. 

** Kentucky v. Dennison, 24 How. 66. 

" The Cherokee Nation v. Georgia, 5 Pet. 1. 

« Texas v. White, 7 Wall. 700. 

^» Wisconsin v. P. I. Co., 127 U. S. 265. 

°» California v. S. P. Co., 157 U. S. 229 ; Minnesota v. N. S. Co., 184 id. 199. 



214 THE JUDICIAL POWER. 

a state was defendant and citizens of other states were 
plaintiffs. In 1792 the Supreme Court of the United 
States, in Chisholm v. Georgia,^^ the cause being an action 
of assumpsit brought by a citizen of South Carolina 
against the state of Georgia, sustained the original juris- 
diction of the Supreme Court in suits by a citizen of one 
state against another state. In consequence of that judg- 
ment, and for the purpose of relieving the states from 
liability to suits to enforce the payment of their obliga- 
tions,^^ the XI Article of the Amendments to the Consti- 
tution was adopted.^^ 

Federal jurisdiction. 

98. The jurisdiction of the courts of the United States 
is, in its character, either civil or criminal, and, in its exer- 
cise, either exclusive of, or concurrent with, the jurisdic- 
tion of the courts of the states, and either original or 
appellate, first, by appeal from a federal court of original 
jurisdiction to a federal court of intermediate, and thence 
to the federal court of final, appeal; or second, by appeal 
directly from the federal court of original jurisdiction to 
the federal court of final appeal ; or third, by appeal from 
a state court of last resort to the federal court of final 
appeal. The courts of the United States also exercise a 
supervisory jurisdiction, over the courts of the states by 
the removal therefrom, before trial, of certain causes of 
federal cognizance,^^ and a general supervisory jurisdic- 
tion which may be invoked by a petition for a writ of 
habeas corpus, whenever a person is in custody for an act 
done or omitted in pursuance of a law of the United States, 
or of an order, process, or decree of a court, or a judge 

^^ 2 DaU. 419. 

"" Cohens v. Virginia, 6 Wheat. 406. 

^^ Infra, Section 115. 

^ Infra, Section 102. 



PEDERAL, JUEISDICTION. 215 

thereof, or is in custody in violation of the Constitution, 
or a law or treaty of the United States.^^ 

As the courts of the United States are courts of limited 
jurisdiction, the record must show affirmatively that the 
cause is necessarily of federal cognizance, by reason of 
eitlier the subject-matter of litigation,'^'^ or the character of 
the parties,^ ■^ and this must be formally averred,^^ or dis- 
tinctly appear on the face of the record.^*^ If the juris- 
dictional fact does appear on the face of the record, it 
can only be traversed by a plea to the jurisdiction.*^*^ 
There is a conclusive presumption of law that a corpora- 
tion and all its members are citizens of the state creating 
the corporation '^^ and that a national bank is a citizen of 
the state within which it is located.^^ 

"' Eev. Stat., sees. 753, 761 ; In re Neagle, 135 U. S. 1 ; In re Loney, 134 
id. 372; Medley, Petitioner, ibid. 160; In re Frederich, 149 id. 70; Ohio v. 
Thomas, 173 id. 276: Boske v. Comingore, 177 id. 459; cf. Storti v. Massa- 
chusetts, 183 id. 138. 

""Lawler v. Walker, 14 How. 149; Osborn v. Bank of the United States, 
9 Wheat. 738, 823 ; Mills v. Brown, 16 Pet. 525 ; E. Co. v. Eock, 4 WaU. 177, 
180; Tennessee v. Union & Planters' Bank, 152 U. S. 454; Chappell v. 
Waterworth, 155 id. 102; P. T. C. Co. v. Alabama, ibid. 482; E. L. L. Co. 
V. Brown, ibid. 488; Sayward v. Denny, 158 id. 180; H. & T. C. E. v. Texas, 
177 id. 66; W. U. T. Co. v. A. A. E., 178 id. 239; cf. K. W. P. Co. v. G. B. 
C. Co., 142 id. 254. 

"Dred Scott v. Sandford, 19 How. 393; Bingham v. Cabot, 3 Call. 382; 
Capron v. Van Noorden, 2 Cr. 126; Breithaupt v. Bank of Georgia, 1 Pet. 
238 ; Brown v. Keene, 8 id. 112, 115 ; HornthaU v. The Collector, 9 Wall. 560 ; 
Godfrey v. Terry, 97 U. S. 171; Eobertson v. Cease, ibid. 646; Grace v. 
A. C. I. Co., 109 id. 278, 283; Cameron v. Hodges, 127 id. 322; Chapman v. 
Barney, 129 id. 677; Stevens v. Nichols, 130 id. 230; Timmons v. E. L. Co., 
139 id. 378; Denny v. Pironi, 141 id. 121; Mattingly v. N. W. V. E., 158 id. 
53; I. C. & I. Co. V. Gibney, 160 id. 217; St. L. & S. F. Ey. v. James, 161 
id. 545; Benjamin v. New Orleans, 169 id. 161. 

^^ Montalet v. Murray, 4 Cr. 46. 

=' Jones V. Andrews, 10 WaU. 327; Godfrey v. Terry, 97 U. S. 171; Eobert- 
son V. Cease, ibid. 646. See also Arbuekle v. Blackburn, 191 id. 405; Min- 
nesota V. N. S. Co., 194 id. 48. 

'■' Wickliffe v. Owings, ] 7 How. 47. 

^^O. & M. E. V. Wheeler, 1 Bl. 286; B. & O. E. v. Harris, 12 WaU. 65; 
Ey. Co. V. Whitton, 13 id. 270; MuUer v. Dows, 94 U. S. 444; St. L. & S. F. 
Ey. V. James, 161 id. 545; Blake v. McClung, 172 id. 239; S. Ey. v. Allison, 
190 id. 326; cf. St. J. & G. I. E. v. Steele, 167 id. 659. 

«' Act 13th Aug., 1888, sec. 4, 25 Stat. 433. 



216 THE JUDICIAL POWEE. 

Original process of the circuit and district courts does 
not run outside of the district in which the suit is brought.^^ 

Where the jurisdiction depends on diverse citizenship, 
suit can be brought only in the district of the residence of 
either the plaintiff or defendant.*'^ 

An assignee of a chose in action cannot sue on the 
ground of diverse citizenship where his assignor could not 
sue, save in actions upon foreign bills of exchange and in 
actions against corporations.^^ 

In causes of criminal cognizance, the original jurisdic- 
tion of the federal courts is limited in two respects. In the 
first place, those courts cannot take cognizance of an act 
alleged to be criminal, which has not been declared to be 
such by an act of Congress.^*' In the second place, Con- 
gress cannot, under the Constitution, declare an act to be 
criminal, unless, as Field, J., said,^^ that act has ''some re- 
lation to the execution of a power of Congress, or to some 
matter within the jurisdiction of the United States." 
Thus, a murder committed on board a vessel of the navy 
of the United States while at anchor in navigable waters 
within the jurisdiction of a state is not cognizable in a 
court of the United States ; ^^ Congress cannot make it a 
misdemeanor to sell within the territory of a state illumi 
nating oil inflammable at less than a specified tempera- 
ture ; ^^ while Congress may legislate with regard to bank- 
ruptcy, and may prohibit and declare to be punishable the 
commission of a fraud in contemplation of bankruptcy, it 
cannot constitute the obtaining of goods on false pretences 

"' IMd., sec. 1. 

^^ Ibid., sec. 1. 

^ Ibid., sec. 1. 

«= U. S. V. Hudson, 7 Or. 32 ; U. S. v. Coolidge, 1 Wheat. 415 ; Bush v. Ken- 
tucky, 107 U. S. 110; Jones v. TJ. S., 137 id. 202, 211. But see Tennessee 
V. Davis, 100 id. 257. 

«'U. S. V. Fox., 95 U. S. 670. 

««U. S. V. Bevans, 3 Wheat. 336. 

'"U. S. V. Dewitt, 9 Wall. 41. 



EXCLUSIVE AND CONCURRENT JURISDICTION. 217 

with intent to defraud, but not in contemplation of bank- 
ruptcy, to be an offense against the United States ; "^^ and 
Congress cannot by statute provide for the punishment of 
state election officers for wronguUy refusing to receive the 
vote of a qualified voter at an election, when that refusal is 
not based upon a discrimination against the voter on ac- 
count of his race, colour, or previous condition of servi- 
tudeJi 

Exclusive and concurrent jurisdiction. 

99. It is a principle of constitutional construction, as 
stated by Marshall, C. J., in Sturges v. Crowninshield,"^^ 
that ''whenever the terms in which a power is granted 
to Congress, or the nature of the power, require that it 
should be exercised exclusively by Congress, the subject 
is as completely taken from the state legislatures as if 
they had been expressly forbidden to act on it. " ^^ In 
conformity with this principle, it has been decided in Mar- 
tin V. Hunter's Lessee,^* and in The Moses Taylor,'^^ that 
Congress has power to divest the courts of the states of 
jurisdiction over all subject-matters which are included 
within the constitutional grant of judicial power to the 
United States, or whose determination by the judicial 
power of the United States is necessary to the exercise by 
Congress of its constitutional power of legislation, and 
where Congress has expressed its will that, as to any par- 
ticular subject-matter of federal cognizance the jurisdic- 

"U. S. V. Fox, 95 U. S. 670. 

"U. S. V. 'Reese, 92 U. S. 214; TJ. S. v. Criiikshank, ibid. 542. 

" 4 Wheat. 193. 

" See also Houston v. Moore, 5 Wheat. 1 ; Gilman v. Philadelphia, 3 Wall. 
713, 730. 

^* 1 Wheat. 304. 

'° 4 Wall. 411. See also Cohens v. Virginia, 6 Wheat. 314, 315, 325 ; Sloeum 
V. Mayberry, 2 id. 9; Gelston v. Hoyt, 3 id. 246; Waring v. Clarke, 5 How. 
451; G., C. & S. F. Ey. v. Hefley, 158 U. S. 98. Sed. of. Story's Com- 
mentaries, sec. 1672, note 4. 



218 THE JUDICIAL POWER. 

tion of the courts of the United States shall be exclusive, 
the courts of the states cannot take cognizance of such 
subject-matter.'^^ 

Of course, the Constitution, having granted the power, 
and not having commanded Congress to exercise it, it is 
for Congress to determine when and to what extent it will 
exercise it. Therefore, the jurisdiction of the courts of 
the United States within the limits imposed by the Con- 
stitution is either exclusive of, or concurrent with, that of 
the courts of the states, as Congress may, from time to 
time, determine.^^ As the law now is, the jurisdiction of 
the courts of the United States is exclusive of that of the 
states in cases of crimes and offenses cognizable under the 
authority of the United States ; in suits for penalties and 
forfeitures incurred under the laws of the United States; 
in civil causes of admiralty and maritime jurisdiction, 
saving to suitors in all cases the right of a common-law 
remedy, where the comon law is competent to give it; in 
seizures under the laws of the United States on land or on 
waters not within admiralty and maritime jurisdiction; 
in cases arising under the patent right or copyright laws 
of the United States; in all matters and proceedings in 

'* In Claflin v. Houseman, 93 U. S. 130, Bradley, J., said, the general prin- 
ciple is, "that, where jurisdiction may be conferred on the United States 
courts, it may be made exclusive where not so by the Constitution itself ; but, 
if exclusive jurisdiction be neither express nor implied, the state courts have 
concurrent jurisdiction whenever, by their own constitution, they are com- 
petent to take it. ' ' In Eobertson v. Baldwin, 165 U. S. 275, Brown, J., said 
that the judicial power which the Constitution intended to confine to courts 
created by Congress ' ' extends only to the trial and determination of ' cases ' 
in courts of record, and Congress is still at liberty to authorize the judicial 
officers of the several states to exercise such power as is ordinarily given to 
officers of courts not of record; such, for instance, as the power to take 
affidavits, to arrest and commit for trial offenders against the laws of the 
United States, to naturalize aliens, and to perform such other duties as may 
be regarded as incidental to the judicial power rather than a part of the 
judicial power itself. ' ' 

" Martin v. Hunter 's Lessee, 1 Wheat. 304, 331, 333 ; The Moses Taylor, 
4 Wall. 411, 429. 



THE COUKTS OF THE UNITED STATES. 219 

bankruptcy ; in all controversies of a civil nature, where a 
state is a party, except between a state and its citizens, or 
between a state and citizens of other states, or aliens ; and 
in all suits or proceedings against ambassadors, or other 
public ministers, or their domestics, or domestic servants, 
or against consuls or vice-consulsJ^ 

The courts of the United States. 

100. The courts of the United States are the district 
courts, the circuit courts, the circuit courts of appeal, 
and the Supreme Court. The jurisdiction of the district 
and circuit courts is exclusively original ; that of the circuit 
courts of appeal exclusively appellate; and that of the 
Supreme Court both original and appellate. The United 
States is divided into judicial districts, in some cases one 
state constituting a judicial district, and, in other cases, 
a state including within its territory two or more districts. 
There are also a court of claims, a court of private land 
claims, and in certain foreign countries, consular courts, 
and in the territories and in Alaska, Hawaii, Porto Rico, 
and the Philippines, territorial courts, whose jurisdiction 
and procedure are foreign to the subject of this book. 
There is for each district court one judge, who is required 
by statute to reside within his district. 

There are nine circuit courts, the United States being 
divided into nine circuits, each circuit including the dis- 
tricts in three, or more, states. For each circuit there are 
two, or more, circuit judges, and in addition thereto, the 
justice of the Supreme Court allotted to that circuit. The 
circuit courts have no longer any appellate jurisdiction.'^^ 

In each circuit there is a circuit court of appeals, con- 
stituted at any one time of three judges, of whom two are 

" Eev. Stat., sec. 711. 

" Act 3d Mar., 1891, c. 517, sec. 4, 26 Stat. 826. 
15 



220 THE JUDICIAL, POWER. 

a quorum.^^ The judges therein are the Supreme Court 
justice assigned to the circuit, the circuit judges, and the 
several district judges thereof. The Supreme Court now 
consists of a chief justice and eight associate justices, 
any six of whom constitute a quorum ; but Congress may 
increase, or decrease, the number of justices, or change 
the quorum. 

Original jurisdiction. 

101. The original jurisdiction of the courts of the United 
States is exercised in some cases by the Supreme Court, 
and, in other cases, by the inferior courts. As Johnson, 
J., said in United States v. Hudson,^^ ''Only the Supreme 
Court possesses jurisdiction derived immediately from the 
Constitution, and of which the legislative power cannot 
deprive it. All other courts created by the general gov- 
ernment possess no jurisdiction but what is given them by 
the power that creates them, and can be vested with none 
but what the power ceded to the general government will 
authorize them to confer. ' ' 

The original jurisdiction of the Supreme Court is lim- 
ited by the Constitution to ''cases affecting ambassadors, 
other public ministers, and consuls, and those in which a 
state shall be party." Congress cannot confer upon the 
Supreme Court any original jurisdiction other than that 
so conferred by the express terms of the Constitution.^^ 
Whether or not Congress can authorize other courts of 
the United States to exercise concurrent original juris- 
diction in the cases, original jurisdiction over which is 
vested by the Constitution in the Supreme Court, was for 
a long time an unsettled question. In U. S. v. Ortega,^^ 

^ Act 3d Mar., 1891, c. 517, 26 Stat. 826. 

»i 7 Cr. 32. 

*^ Marbury v. Madison, 1 Cr. 137. 

*^ 11 Wheat. 467. 



OEIGINAL JUEISDICTION. 221 

the question was raised, but not decided, but in Bors v. 
Preston,^ ^ it was determined, that the Congress might con- 
fer a concurrent original jurisdiction upon the circuit 
courts of the United States in actions against consuls of 
foreign states.*^ The Supreme Court may also issue 
writs of prohibition to the admiralty courts,^^ and writs 
of mandamus ^"^ ^ ' in cases warranted by the principles and 
usages of law. ' ' ^^ 

The original jurisdiction of the subordinate courts of 
the United States, excepting the circuit courts of appeal, 
which have no original jurisdiction,^^ is, in the main, as 
follows : 

On the civil side, the circuit courts have original juris- 
diction, concurrent with the courts of the states, of all suits 
at common law, or in equity, where the matter in dispute^ 
exclusive of interest and costs, exceeds two thousand dol- 
lars, first, where the controversy arises under the Consti- 
tution, laws, or treaties of the United States ; second, where 
the controversy is between citizens of different states, or 
between citizens of a state and foreign states, citizens, or 
subjects ; third, where the controversy is between citizens 
of the same state claiming land under grants of different 
states; and, fourth, where the United States are plain- 
tiffs.'^*^ The circuit courts also have jurisdiction, without 
pecuniary limitation, of all suits under internal revenue 
and postal laws ; ^^ of all suits for penalties under laws 
regulating the carriage of passengers in merchant ves- 

" 111 U. S. 252. 

»'Eev. Stat., sec. 687. See also Ames v. Kansas, 111 U. S. 449; P. T, C. 
Co. V. Alabama, 155 id. 482. But see Curtis 's Jurisdiction of the Courts of 
the U. S., p. 10. 

»« U. S. V. Peters, 3 DaU. 121. 

"Hayburn's Case, 2 DaU. 409. 

«' Eev. Stat., sec. 688. 

»* See Act 3d Mar., 1891, c. 517, 26 Stat. 826, 

'"Act 13th Aug., 1888, c. 866, 25 Stat. 433. 

"Eev. Stat., sec. 629. 



222 THE JUDICIAL POWER. 

sels ; ^^ of patent,®^ copyright,^^ and trade-mark ^^ cases ; 
of winding-up suits against national banks ; ^^ and of suits 
to recover damages for injuries to the person or property 
under revenue laws.^'^ 

The circuit courts also have original jurisdiction under 
the Anti-trust Act of 1890,^^ and under the Interstate Com- 
merce Act ^^ and in customs cases.^*^*' 

The circuit courts also have original jurisdiction, con- 
current with the court of claims, of all claims against the 
United States, when the matter in dispute, exclusive of 
costs, exceeds one thousand dollars and does not exceed ten 
thousand dollars.^ 

The circuit courts have also, on the criminal side, ex- 
clusive cognizance of all crimes and offenses made such by 
the statutes of the United States, except where otherwise 
provided by law, and concurrent jurisdiction with the dis- 
trict courts of crimes and offenses cognizable therein.^ 

The district courts have original jurisdiction of all 
crimes and offenses made such by the statutes of the 
United States when committed within their respective dis- 
tricts, or upon the high seas, and the punishment of which 
is not capital ; and on the civil side, of all suits for penalties 
and forfeitures ; of all suits at common law brought by the 
United States, or by any officer thereof, authorized by law 
to sue ; of all suits in equity to enforce liens, etc., under the 

'^Eev. Stat., sec. 629. 

"'Eev. Stat., sec. 629; Act 3d Mar., 1897, c. 395, 29 Stat. 695. 

»*Eev. Stat., sec. 629; Act 6th Jan., 1897, c. 4, 29 Stat. 481. 

"^ Act 3d Mar., 1881, c. 138, 21 Stat. 502. 

^Act 13th Aug., 1888, c. 866, sec. 4, 25 Stat. 436, amending Eev. Stat., 
sec. 629. 

«' Eev. Stat., sec. 629. 

^ Act 2d July, 1890, c. 647, 26 Stat. 209. 

«* Acts 4th Feb., 1887, c. 104, sec. 16, 24 Stat. 384; 2d March, 1889, c. 382, 
sec. 5, 25 Stat. 855. 

I"* Under sec. 15 of the Act of 10th June, 1890, c. 407, 26 Stat. 131. 

^Aet 3d Mar., 1887, c. 359, sec. 2, 24 Stat. 505. 

^Act 13th Aug., 1888, c. 866, 25 Stat. 433. 



APPELLATE AND SUPERVISORY JURISDICTION. 223 

internal revenue statutes ; of suits for the recovery of for- 
feitures or damages due to the United States ; of all causes 
of action under the postal laws; of admiralty causes, 
saving to suitors their common-law remedies, if any ; and 
of all litigation in bankruptcy.^ The district courts have 
also concurrent jurisdiction with the court of claims in 
claims against the United States when the matter in dis- 
pute does not exceed one thousand dollars.* 

The court of claims has original jurisdiction of claims 
against the United States, and of set-offs against the claims 
sued on.^ 

Appellate and supervisory jurisdiction. 

102. As the Constitution has declared that in all cases, 
other than those in which original jurisdiction has been 
by its terms vested in the Supreme Court, that court ' ' shall 
have appellate jurisdiction, both as to law and fact, with 
such exceptions, and under such regulations as the Con- 
gress shall make, ' ' Congress may define and limit the ap- 
pellate jurisdiction of the Supreme Court,^ but the Su- 
preme Court cannot be required to review the actions of 
officers of the United States under legislative or executive 
references."^ In the exercise of its appellate jurisdiction 
the Supreme Court of the United States may review the 
final judgments and decrees of the inferior courts of the 
United States under the restrictions stated in the acts of 
Congress,* and it may review the final judgments or decrees 
of the courts of last resort of the states in causes either 

^Eev. Stat., sec. 563. 

* Act 3d Mar., 1887, c. 359, see. 2, 24 Stat. 505. 
° Eev. Stat., sec. 1059 et seq. 

'Wiseart v. Daiichy, 3 Dall. 321; Durousseau v. U. S., 6 Cr. 307, 314; The 
Francis Wright, 105 U. S. 381 ; L. & G. W. S. Co. v. P. I. Co., 129 id. 397. 

'Hayburn's Case, 2 Dall. 409; Hunt v. Palao, 4 How. 589; McNulty v. 
Batty, 10 id. 72 ; U. S. v. Ferreira, 13 id. 40 ; Gordon v. U. S., 2 Wall. 561. 
See also language of Taney, C. J., in appendix to 117 U. S. 

* Eev. Stat., sec. 690 et seq. 



224 THE JUDICIAL POWER. 

civil or criminal, ''where is drawn in question the validity 
of a statute of, or an authority exercised under any state, 
on the ground of their being repugnant to the Constitu- 
tion, treaties, or laws of the United States, and the de- 
cision is in favour of their validity; or where any title, 
right, privilege, or immunity is claimed under the Con- 
stitution, or any treaty or statute of, or commission held 
or authority exercised under, the United States, and the 
decision is against the title, right, privilege, or immunity 
specially set up or claimed by either party, under such 
Constitution, treaty, statute, commission, or authority. ' ' ® 
But even though the state court of last resort passes upon 
a question federal in its nature, if the decision also in- 
volves an independent ground sufficiently broad to sustain 
the judgment, that decision cannot be questioned in the 
Supreme Court.^^ The courts of the United States also 
exercise a supervisory jurisdiction over the courts of the 
states by a removal from a court of a state to a federal 
court of a cause, either civil or criminal, depending but 



' Eev. Stat., sec. 709. See also Cohens v. Virginia, 6 Wheat. 264 ; Worces- 
ter V. Georgia, 6 Pet. 515; Twitchell v. The Commonwealth, 7 Wall. 321; 
Spies V. Illinois, 123 U. S. 131; Burthe -;;. Denis, 133 id. 514; Missouri v. 
Andriano, 138 id. 496; Etheridge v. Sperry, 139 id. 266; Williams v. Heard, 
140 id. 529; Metropolitan Bank v. Claggett, 141 id. 520; Boyd v. Nebraska, 
143 id. 135 ; Eoby v. Colehour, 146 id. 153 ; Sayward v. Denny, 158 id. 180 ; 
C. & N. W. Ey. V. Chicago, 164 id. 454; Dewey v. Des Moines, 173 id. 193; 
Scudder v. Comptroller, 175 id. 32; Boske v. Comingore, 177 id. 459; Eoths- 
child V. Knight, 184 id. 334; M. L. I. Co. v. McGrew, 188 id. 291; Hooker v. 
Los Angeles, Hid. 314; N. M. B. & L. Assn. v. Brahan, 193 id. 635; cf. 
Moran v. Horsky, 178 id. 205 ; Y. & M. V. Ey. v. Adams, 180 id. 1. 

^"De Saussure v. Gaillard, 127 IT. S. 216; Hale v. Akers, 132 id. 554; Hop- 
kins V. McLure, 133 id. 380 ; Beatty v. Benton, 135 id. 244 ; Johnson v. Eisk, 
137 id. 300 ; Cook County v. C. & C. C. & D. Co., 138 id. 635 ; Hammond v. 
Johnston, 142 id. 73 ; Eustis v. BoUes, 150 id. 361 ; E. E. v. C. V. E., 159 id. 
630; Seneca Nation v. Christy, 162 id. 283; Allen v: S. P. E., 173 id. 479; 
Seeberger v. MeCormick, 175 id. 274; Moran v. Horsky, 178 id. 205; Hale 
V. Lewis, 181 id. 473 ; Howard v. Fleming, 191 id. 126. See also Dreyer v. 
Hlinois, 187 id. 71. 



APPELLATE AND SUPERVISORY JURISDICTION. 225 

not yet finally adjudicated in the state court,^^ or by the 
issue of a writ of habeas corpus in cases of a restraint of 
personal liberty under process of a court of a state, void 
by reason of the offense with which the prisoner is charged 
being a matter of federal, and not of state, cognizance, 
or by reason of the restraint of a prisoner in violation of 
the Constitution, or of any treaty, or law of the United 
States.^ ^ The right of appeal, or of removal, or to the 
writ of habeas corpus, is in any case dependent, not only 
on the federal character of the question involved, or the 
right of the party to sue in the federal court, but also on 
the- terms of the act of Congress authorizing the exercise 
by the court of the United States of its supervisory juris- 
diction in the particular case. The Constitution does not 
expressly authorize the removal of causes of federal cog- 
nizance from the courts of the states to the courts of the 
United States before final judgment, nor does it expressly 
authorize the review of such causes in the Supreme Court 
of the United States after the entry of final judment in 
a court of a state, nor does it expressly authorize the re- 
lease by a court of the United States after a hearing on 



"West V. Aurora City, 6 Wall. 139; Philadelphia v. The Collector, 5 id. 
720; The Mayor v. Cooper, 6 id. 247; Tennessee v. Davis, 100 TJ. S. 257; 
Eemoval Cases, ibid. 457; Ames v. Kansas, 111 id. 449; Young v. 
Parker, 132 id. 267; Bock v. Perkins, 139 id. 628; MarshaU v. Holmes, 141 
id. 589 ; Martin v. B. & O. E., 151 id. 673 ; cf. Brown v. Trousdale, 138 id. 
389; Bellaire v. B. & O. E., 146 id. 117; Chappell v. Waterworth, 155 id. 
102; E. L. L. Co. v. Brown, Hid. 488; Arkansas v. K. & T. C. Co., 183 id. 185. 

" In re Loney, 134 U. S. 372 ; Medley, Petitioner, ibid. 160 ; In re Neagle, 
135 id. 1; In re Frederich, 149 id. 70; Ohio v. Thomas, 173 id. 276; Boske 
V. Comingore, 177 id. 459; cf. Storti v. Massachusetts, 183 id. 138. But 
ordinarily the writ issues only when the court under whose warrant the 
petitioner is held is without jurisdiction. In re Duncan, 139 V. S. 449; 
Whitten v. Tomlinson, 160 id. 231; Crossley v. California, 168 id. 640; Baker 
V. Grice, 169 id. 284; Tinsley v. Anderson, 171 id. 101; Harkrader v. Wadley, 
172 id. 148; Markuson v. Boucher, 175 id. 184; Davis v. Burke, 179 id. 399; 
Minnesota v. Brundage, 180 id. 499. See also U. S. v. Sing Tuck, 194 id. 
161; cf. Ex parte Eoyall, 117 id. 241, 252; New York v. Eno, 155 id. 89; 
Eev. Stat., see. 751 et seq. 



226 THE JUDICIAL POWEB. 

habeas corpus of a prisoner indicted in a state court for 
doing that which under the Constitution and laws of the 
United States he may rightfully do, but the right of re- 
moval, the right of appeal, and the right to a discharge 
after hearing on habeas corpus, alike result from the con- 
stitutional declaration of the supremacy of the Constitu- 
tion and laws of the United States. 

The circuit courts have no appellate jurisdiction.^^ 
The appellate jurisdiction of each circuit court of ap- 
peals is exercised by appeal or by writ of error from the 
district and circuit courts within its circuit, and from ter- 
ritorial courts attached by statute to its circuit, in all cases 
other than those in which the Supreme Court has direct 
appellate jurisdiction,^* and the judgments or decrees of 
each circuit court of appeal are final in all cases in which 
the jurisdiction is dependent exclusively upon diverse citi- 
zenship ; and in all patent, revenue, and admiralty causes, 
and in all prosecutions not directly appealable from the 
district, or circuit, courts to the Supreme Court; except- 
ing that upon every subject within its appellate jurisdic- 
tion, a circuit court of appeals may certify to the Supreme 
Court of the United States any question of law concerning 
which the circuit court of appeals desires the instruction 
of the Supreme Court for a proper decision ; and except- 
ing also that the Supreme Court may, in any case, require 
a circuit court of appeals to certify any case for final 
review and determination.^^ 

The appeals or writs of error may be taken from the 
circuit court of appeals to the Supreme Court in all cases 
in which the judgment or decree of the circuit court of 
appeals is not made final by statute ; and appeals or writs 
of error may be taken directly from the district and circuit 

" Act 3d Mar., 1891, c. 517, sec. 4, 26 Stat. 826. 
^^Ibid., sec. 5. 
^Ibid., sec. 6. 



APPELLATE AND SUPEKVISORY JUEISDICTION. 227 

courts to the Supreme Court from final sentences and 
decrees in prize causes ; in cases of conviction of a capital 
or otherwise infamous crime; in any case involving the 
construction or application of the Constitution of the 
United States ; in any case in which is drawn in question 
the constitutionality of any law of the United States, or 
the validity or construction of any treaty made under its 
authority ; in any case in which the constitution or law of 
a state is claimed to be in contravention of the Constitu- 
tion of the United States ; and on any case in which the 
jurisdiction of the court is in issue, but in such cases the 
question of jurisdiction alone shall be certified by the court 
below for decision.^ ^ 

The appellate jurisdiction of the Supreme Court also 
extends to final judgments of the court of claims.^'^ 

The supervisory jurisdiction of the federal courts is ex- 
ercised by removal, upon petition of, and bond filed by, 
the defendant before filing plea or answer, of a pending 
civil cause from a state court to the circuit court of the 
United States of the proper district where the case is one 
of a class of which the circuit court has jurisdiction under 
the statutes, and where the suit arises under the Constitu- 
tion, laws, or treaties of the United States, or where the 
defendant is a non-resident of the state, or where the con- 
troversy is wholly between citizens of different states, and 
it can be fully determined as between them, or where it 
shall be made to appear before the circuit court that the 
defendant, being a citizen of a state other than that in 
which the action is pending, cannot, by reason of appre- 
hended prejudice or local influence, obtain justice in the 
state court.^^ The circuit court may remand to the state 
court any cause not properly removed.^ ^ 

^*Act 3d Mar., 1891, c. 517, see. 5, ut supra. 
"Eev. Stat., sec. 709. 

" Act 13th Aug., 1888, e. 866, 25 Stat. 433. 
" IMd. 



228 THE JUDICIAL POWER. 

It is foreign to the purpose of this book to discuss in 
detail the practice in the different courts. 

The necessity of a judicial "case." 

103. "Whatever be the form in which the jurisdiction of 
the courts of the United States is invoked, it is essential 
to the exercise of the jurisdiction that there should be a 
"case" before the court, that is, a subject-matter for 
judicial determination contested by competent parties.^** 
The courts, therefore, will not give judgment upon 
"moot" questions, or abstract propositions.^^ If it 
appear from the record, or be proven aliunde, that a judg- 
ment brought up for review has been satisfied, the appeal 
must be dismissed.^^ It is also essential that the question 
for decision be judicial in character, for the courts cannot 
decide political questions, such as whether or not the 
people of a state have altered their form of government 
by abolishing an old government and establishing a new 
one in its place,^^ nor whether or not, in a foreign country, 
a new government has been established,^* nor whether or 
not the United States has sovereignty over a territory ,2^ 
nor can the courts by injunction restrain a state from the 
forcible exercise of legislative power over an Indian tribe 
' ' asserting their independence, the right to which the state 

-» Osborn v. Bank of the U. S., 9 Wheat. 738 ; Cohens v. Virginia, 6 id. 
379; Upshur County v. Eich, 135 U. S. 467; L. A. S. M. Co. v. U. S., 175 
id. 423 ; Lampasas v. Bell, 180 id. 276. 

^ Mills V. Green, 159 U. S. 651; N. O. F. Inspectors v. Glover, 160 id. 
170; Tyler v. Judges of Court of Eegistration, 179 id. 404; Codlin v. Kohl- 
hausen, 181 id. 151; Turpin v. Lemon, 187 id. 51; Chadwick v. Kelley, ibid. 
540; Smith v. Indiana, 191 id. 138. 

=' A. B. Co. V. Kansas, 193 U. S. 49. 

^ Luther v. Borden, 7 How. 1, 147. 

^*Eose V. Himely, 4 Cr. 241, 272; Gelston v. Hoyt, 3 Wheat. 246, 324; 
Kennett v. Chambers, 14 How. 38 ; Terlinden v. Ames, 184 id. 270. 

="= Jones V. U. S., 137 U. S. 202; In re Cooper, 143 U. S. 472, 503; ef. 
U. S. V. Texas, iUd. 621. 



THE NECESSITY OF A JUDICIAL '^CASE/^ 229 

denies,"-^ nor enjoin the executive department of the gov- 
ernment of the United States from carrj^ing into effect 
acts of Congress alleged to be unconstitutional.^^ Such 
questions can only be decided by the political power, ' ' and 
when that power has decided, the courts are bound to take 
notice of its decision and to follow it. ' ' -^ Upon this prin- 
ciple, the recognition by Congress and the executive of the 
state governments of the then lately rebellious states as 
reconstructed after the suppression of the rebellion was 
held to be binding upon the judicial department of the 
government.^^ But the courts may compel the perform- 
ance of a ministerial and non-discretionary duty by an 
executive ofl&cer, as, for instance, the delivery of a signed 
and sealed commission to an officer who has been ap- 
pointed, nominated, and confirmed,^*^ or the crediting to a 
government creditor of a sum of money found by the 
Treasury to be due under the express terms of an act of 
Congress.^^ 

-^ The Cherokee Nation v. Georgia, 5 Pet. 1, 20. 

^Mississippi v. Johnson, 4 Wall. 475; Georgia v. Stanton, 6 id. 50. See, 
however, dicta in Cruickshank v. Bidwell, 176 U. S. 73, and cases there cited. 

^Luther v. Borden, 7 How. 1. 

=» Texas v. White, 7 Wall. 700. 

^"Marbury v. Madison, 1 Cr. 137. 

=^ Kendall v. U. S., 12 Pet. 521. See also Noble v. U. E. L. E., 147 U. S. 
165; Decatur v. Paulding, 14 Pet. 497; U. S. v. Schurz, 102 U. S. 378; 
Butterworth v. Hoe, 112 id. 50; U. S. v. Black, 128 id. 40, 50; U. S. v. 
Windom, 137 id. 636; TJ. S. v. Blaine, 139 id. 306; New Orleans v. Paine, 
147 id. 261; Eoberts v. V. S., 176 id. 221; De Lima v. Bidwell, 182 id. 1; 
Fok Yung Yo v. U. S., 185 id. 296 ; A. S. of M. H. v. McAnnulty, 187 id. 94. 

In the courts of the United States, laws of foreign countries may be 
proved as facts, C. & A. E. v. W. F. Co., 119 U. S. 615, 622; L. & G. W. S. 
Co. V. P. I. Co., 129 id. 397, 445; Talbot v. Seeman, 1 Cr. 1; Church v. Hub- 
bart, 2 id. 187 ; Strother v. Lucas, 6 Pet. 763 ; Armstrong v. Lear, 8 id. 52, by 
official publications thereof, satisfactorily certified, Ennis v. Smith, 14 How. 
400, or by written copies thereof attested by the oath of a United States 
consul, Church v. Hubbart, 2 Cr. 187. Unwritten foreign laws may be 
proved by the testimony of experts, Livingston v. M. I. Co., 6 Cr. 274; Ennis 
V. Smith, 14 How. 400; Pierce v. Indseth, 106 U. S. 546. The courts of the 
United States take notice, without proof, of the laws of the several states, 
C. & A. E. V. W. F. Co., 119 U. S. 615, 622 ; Owings v. Hull, 9 Pet. 607, and 



230 THE JUDICIAL POWER. 

The federal judiciary. 

104. The courts of the United States have contributed 
to the history of the country a chapter which every Ameri- 
can citizen can read with pride. The dignity of the 
judicial office, its security of tenure, and its consequent 
independence of political dictation and control, have so 
far compensated for the inadequacy of the salaries 
that lawyers who might reasonably look forward to lucra- 
tive practice have, in many instances, been induced to 
accept seats upon the federal bench. The judges have 
been, with scarcely an exception, learned and able lawyers, 
and their personal characters have given weight to their 
judgments. They have performed their judicial duties 
with courage, faithfulness, and intelligence. They have, 
in general, administered with firmness, and with tact, the 
extensive jurisdiction of their courts. All that is to be 
said of the federal judges, in general, can be said, with 
even greater force, of the successive Chief Justices and 
Justices of the Supreme Court of the United States. Sov- 
ereign states, vast aggregations of capital, and the mass 
of the people have respectfully bowed to the judgments of 
that tribunal. No fair-minded man has ever doubted, 
however much he might be disposed to criticise the result 
in any particular cause, that the court in arriving at its 
conclusions had given full consideration to every fact and 
every argument and had earnestly endeavoured to do jus- 
tice. The work of the court which has attracted most 
attention has been in its interpretation of the Constitu- 
tion. In the performance of that duty the court has had 

of the laws governing territory subsequently acquired by the United States, 
U. S. V. Perot, 98 U. S. 428 ; Fremont v. U. S., 17 How. 542, 557. But the 
Supreme Court of the United States, in the exercise of its appellate juris- 
diction, does not take judicial notice of the laws of foreign countries, nor of 
the laws of the several states of the United States, if such laws have not 
been found as facts in the courts of the first instance, Hanley 'v. Donoghue, 
116 U. S. 1 ; C. & A. E. v. W. F. Co., 119 U. S. 615, 623. 



THE FEDERAL. SUPREMACY. 231 

to apply an instrument made at the birth of the govern- 
ment to the changing conditions of the nation's develop- 
ment. This has been done in all cases with judicial de- 
liberation, and, in almost all cases, with the wisdom of 
statesmen. 

The court, in all but two instances, has wisely held itself 
aloof from political controversies whose consideration it 
was possible to avoid. In 1803,^^ judges who were Fed- 
eralists united in an opinion which, if it could have been 
enforced by a judgment, would have deprived the Demo- 
cratic party of those spoils of office which that party re- 
garded as the fruits of its triumph over the Federalist 
party. In 1857,^^ judges who were Democrats thought 
they had established the indefeasible right of slavery to 
occupy the territories of the United States. The cases 
were alike in that in each instance the court, having proved 
to its satisfaction that it had no jurisdiction over the 
subject-matter of decision, proceeded to a judicial de- 
termination upon the merits of the controversy; and in 
each instance the country revolted against the attempted 
judicial usurpation of political functions. 

The greatest service which the Supreme Court of the 
United States has rendered to the country is that through- 
out our history it has been an object lesson of the suprem- 
acy of law. It is impossible to overstate the vital impor- 
tance to the republic of the teaching of this lesson, a lesson 
so hard for a democracy to learn, and so essential to the 
maintenance of free institutions. 

The federal supremacy. 

105. The law administered in the courts of the United 
States is found in the Constitution, in acts of Congress, 

^' Marbury v. Madison, 1 Cr. 137. 

^ Dred Scott v. Sandf ord, 19 How. 393. 



232 THE JUDICIAL POWER. 

in treaties made by the United States, and in the judg- 
ments of the Supreme Court. 

Section 2 of Article VI of the Constitution declares, that 
''this Constitution, and the laws of the United States which 
shall be made in pursuance thereof, and all treaties made, 
or which shall be made, under the authority of the United 
States, shall be the supreme law of the land; and the 
judges in every state shall be bound thereby, anything in 
the constitution or laws of any state to the contrary not- 
withstanding. ' ' 

The Constitution is the Constitution as orginally rati- 
fied, and as subsequently amended in the manner and 
under the restrictions contained in the Constitution, and 
as construed by the judicial department of the government 
so far as regards all that may properly become a subject- 
matter of judicial determination. The validity of an act 
of Congress is dependent upon its conformity to the Con- 
stitution.^* The validity of an act of a state legislature 
is dependent upon its conformity to the Constitution of 
the United States and also upon its conformity to the 
constitution of its state. 

But an act of legislation will not, on slight implication, 
or vague conjecture, be judicially determined to be in con- 
flict with the Constitution, for the presumption is always 
in favour of the constitutionality of a law.^^ Statutes, 
which are constitutional in part only, will be upheld by 
the court so far as they are not in conflict with the Con- 
stition, provided that their constitutional, and their uncon- 

^' Marbury v. Madison, 1 Cr. 137 ; Norton v. Shelby County, 118 U. S. 425. 

=*' Fletcher v. Peck, 6 Cr. 87; Legal Tender Cases, 12 Wall. 531; U. S. v. 
Harris, 106 U. S. 629; U. S. v. G. E. Ky., 160 id. 668; Brown v. Walker, 
161 id. 591; Nicol v. Ames, 173 id. 509; H. & T. C. E. v. Texas, 177 id. 66; 
Fairbank v. U. S., 181 id. 283; Booth v. Illinois, 184 id. 425; Eeid v. Colo- 
rado, 187 id. 137; The Japanese Immigrant Case, 189 id. 86, 101; Buttfield 
V. Stranahan, 192 id. 470, 



CONSTITUTIONAL AND STATXJTOBY CONSTEUCTION. 233 

stitutional, parts be severable ; ^^ but when the unconsti- 
tutional parts of such a statute are so connected with its 
general scope, that, should they be stricken out, effect can- 
not be given to the legislative intent, the other provisions 
of the statute must fall with them.^'^ 

Constitutional and statutory construction. 

106. The colonial lawyers were familiar with the idea 
of a judicial determination of the invalidity of an act of 
legislation by reason of its contravention of an organic 
law, for they not infrequently had their attention called 
to deliverances by the Privy Council in England holding 
invalid acts of colonial legislatures for the want of con- 
formity to colonial charters, or to English statutes. It 
is therefore not surprising that there are dicta and judg- 
ments of colonial courts recognizing this principle.^^ 

Alexander Hamilton,^^ after saying that the independ- 
ence of the courts is essential in a country where the Con- 
stitution limits the power of the legislatures by specific ex- 
ceptions therefrom, adds that such ''limitations . . . can 
be preserved in practice in no other way than through the 
medium of courts of justice whose duty it must be to de- 
clare all acts contrary to the manifest tenor of the Consti- 
tution void. . . . The Constitution ought to be preferred 
to the statute, the intention of the people to the intention 

^Packet Co. v. Keokuk, 95 U. S. 80; PoUock v. P. L. & T. Co., 158 id. 
601 ; cf. Presser v. Illinois, 116 id. 252. 

" Trade-Mark Cases, 100 U. S. 82 ; Allen v. Louisiana, 103 id. 80 ; U. S. 
V. Harris, 106 id. 629; Virginia Coupon Cases, 114 id. 269; Spraigue v. 
Thompson, 118 id. 90; Baldwin v. Franks, 120 id. 678; Pollock v. F. L. & T. 
Co., 158 id. 601 ; cf. Connolly v. U. S. P. Co., 184 id. 540. 

^ Commonwealth v. Caton, 4 Call, Virginia Eeports, 5, per Wythe, J. ; 
Holmes v. Walton, cited in State v. Parkhurst, 9 N. J. L. 427, 444; Trevett 
V. Weeden, 2 Arnold's History of Ehode Island, 525; Bayard v. Singleton, 
1 Martin, North Carolina Eeports, 42; Bowman v. Middleton, 1 Bay, South 
Carolina Eeports, 252; Cooley's Constitutional Limitations, 55. 

'» Federalist, No. 78, 9 Hamilton's Works, Lodge's Edition, pp. 482, 484. 



234 THE JUDICIAL POWEB. 

of their agents. . . . The prior charter of the superior 
ought to be preferred to the subsequent acts of an inferior 
and subordinate authority, and . . . accordingly when- 
ever a particular statute contravenes the Constitution it 
will be the duty of the judicial tribunals to adhere to the 
latter and disregard the former." This reasoning has 
been adopted and uniformly followed by the court.* "^ 

The most important function of the courts is that of 
construing the Constitution, and that construction is 
authoritatively and finally, so far as regards subject-mat- 
ters of judicial determination, made by the Supreme Court 
of the United States. The rules, which are applied by the 
court in the construction of the Constitution, are few and 
simple. ( 1 ) . The construction is neither lax nor rigorous, 
but such as to effectuate the purpose of the instrument as 
''an establishment of a frame of government and a dec- 
laration of that government's fundamental principles in- 
tended to endure for ages and to be adapted to the various 
crises of human affairs." *^ (2). The antecedent history 
of the country and the state of the public affairs at the 
time of the adoption of the Constitution are considered, 
in order that the old law, the mischief, and the remedy 
may have their relative weight.*^ (3). A contempora- 
neous legislative exposition acquiesced in for a long term 
of years fixes the construction.*^ (4). The words are read 
in their natural sense,** departing from and varying by 
construction the natural meaning of the words only where 

*'Marbury v. Madison, 1 Cr. 137. See also the language of Taney, C. J., 
quoted in the appendix to 117 U. S. 

^ Juilliard v. Greenman, 110 U. S. 421; Gibbons v. Ogden, 9 Wheat. 1; 
Martin v. Hunter 's Lessee, 1 Wheat. 304. 

*^ Ehode Island v. Massachusetts, 12 Pet. 657 ; Maxwell v. Dow, 176 U. S. 
581, 602. 

*^ Stuart V. Laird, 1 Cr. 299 ; Briscoe v. The Bank of the Commonwealth of 
Kentucky, 11 Pet. 257, 317; C. M. Co. v. Ferguson, 113 U. S. 727. See also 
Downes v. Bidwell, 182 id. 244. 

" Gibbons v. Ogden, 9 Wheat. 1. 



CONSTITUTIONAL, AND STATUTORY JURISDICTION. 235 

different clauses of the instrument bear upon each, other 
and would conflict, unless the words were construed other- 
wise than by their natural and common import.^^ (5). 
An exception from a power which is granted in express 
terms marks the extent of the power and shows that the 
power necessarily includes other cases which come within 
the terms of the grant and which might have been, but 
were not, specifically excepted.*^ (6). When a term of 
the common law is used, its common-law meaning is 
adopted with it.*'^ (7). The Federalist is not, of course, 

*^ Sturges V. Crowninshield, 4 Wheat. 122. Story, J., said, in Prigg v. 
Penna., 16 Pet. 610, "Perhaps, the safest rule of interpretation after all 
wiU be found to be to look to the nature and objects of the particular 
powers, duties, and rights, with all the lights and aids of contemporary his- 
tory; and to give to the words of each just such operation and force, con- 
sistent with their legitimate meaning, as may fairly secure and attain the 
ends proposed." 

^ Gibbons v. Ogden, 9 Wheat. 1 ; Ehode Island v. Massachusetts, 12 Pet. 
657; Brown v. Maryland, 12 Wheat. 438. 

" In Schick v. U. S., 195 U. S. 65, Brewer, J., said, in reference to a clause 
of Article III, "It must be read in the light of the common law. 'That,' 
said Mr. Justice Bradley, in Moore v. U. S., 91 U. S. 270, 274, referring 
to the common law, *is the system from which our judicial ideas and legal 
definitions are derived. The language of the Constitution and of many acts 
of Congress could not be understood without reference to the common law.' 
Again, in Smith v. Alabama, 124 U. S. 465, 478, is this declaration by Mr. 
Justice Matthews: 'The interpretation of the Constitution of the United 
States is necessarily influenced by the fact that its provisions are framed 
in the language of the English common law, and are to be read in the light 
of its history. ' In U. S. v. Wong Kim Ark, 169 U. S. 649, 654, Mr. Justice 
Gray used this language: 'In this, as in other respects, it must be inter- 
preted in the light of the common law, the principles and history of which 
were familiarly known to the framers of the Constitution.' " Duncan, J., 
said in Lyle v. Eichards, 9 S. & E. 356, "In American legislation, when a 
term of the common law is adopted, the common-law meaning is adopted 
with it." Marshall, C. J., said in U. S. v. Burr, 4 Cr. 470, in commenting 
on the phrase "levying war" in the constitutional definition of treason, 
" It is a technical term ; it is used in a very old statute in that country, whose 
language is our language, and whose laws form the substratum of our laws. 
It is hardly conceivable that the term was not employed by the framers of 
our Constitution in the sense which has been affixed to it by those from 
whom we borrowed it. So far as the meaning of any terms, particularly 
terms of art, is completely ascertained, those by whom they are employed 
must be considered as employing them in that ascertained meaning, unless 
the contrary be proved by the context." 
16 



236 THE JUDICIAL POWER. 

of binding authority upon the Supreme Court with regard 
to the judicial construction of the Constitution, but as 
Marshall, C. J., said in Cohens v. Virginia,*^ the "opinion 
of the Federalist has always been considered as of great 
authority. It is a complete commentary on our Constitu- 
tion, and is appealed to by all parties in the questions to 
which that instrument has given birth. Its intrinsic merit 
entitles it to this high rank, and the part two of its authors 
performed in framing the Constitution put it very much 
in their power to explain the views with which it was 
framed." (8). The reported proceedings of the conven- 
tion which framed the Constitution, and of the several 
state conventions which ratified it, though frequently re- 
ferred to in the discussions of questions of constitutional 
construction, are not of binding authority. The views ex- 
pressed in the debates are merely the views of the indi- 
vidual speakers, and do not necessarily express the view 
of the subject which induced the federal convention to 
insert the particular provision in the Constitution as 
framed by them, or which led the convention of any one 
state to ratify the Constitution.*^ The votes of the con- 
vention on the details of the Constitution are of no greater 
importance, for an affirmative vote approving a particular 
section of the Constitution, throws no light on the mean- 
ing of the words of the section ; and a negative vote reject- 
ing a proposed constitutional provision may with equal 
propriety be regarded as an expression of opinion to the 
effect that the proposed provision is unnecessary because 
adequately supplied by other provisions of the Constitu- 
tion, or as a refusal to adopt the particular provision be- 
cause in the opinion of the convention such a provision 
ought not to be inserted in the Constitution. It must be 

*« 6 Wheat. 418. See Sir Henry Maine 's ' ' Popular Government, ' ' p. 202, 
for references to foreign eulogies of tlie Federalist. 
« U. S. V. U. P. E., 91 U. S. 72, 79. 



JUDGMENTS OF COUBTS. 237 

remembered that the Constitution derives its whole force 
and authority from its ratification by the people,^" and 
whenever it becomes necessary to determine the meaning 
of any clause in the Constitution, the real question for de- 
cision is, not what did the federal convention, or any mem- 
ber thereof, understand that clause to mean when that 
convention framed the Constitution, nor what did the 
members of any particular state convention understand 
that clause to mean when their convention ratified the 
Constitution, but what did that clause really mean as rati- 
fied by all the conventions, and that meaning can only be 
determined by the application of the established rules of 
judicial construction.^^ 

The meaning of a statute is determined by the applica- 
tion of rules of construction, which are substantially the 
same as the rules of constitutional construction, and 
whose object is simply to determine the legislative intent, 
which is the natural and reasonable effect of the words 
used.^2 

Judgments of courts. 

107. A judgment of a court is an application of a 
rule of law to the facts of a particular case, and its value 
as an authority is dependent upon the extent and finality 
of the jurisdiction of the court and upon an ascertainment 
of the facts as presented to the mind of the court and a 
deduction of the rule of law determining the decision on 
those facts.^^ The opinion of any court or judge upon a 

^ McCulloch V. Maryland, 4 Wheat. 316, 404. 

^^ The view as stated in the text was forcibly put by E. C. McMurtrie, 
Esq., in his "Observations on Mr. George Bancroft's Plea for the Constitu- 
tion, " p. 8 e* seq. See also Maxwell v. Dow, 176 U. S. 581, 601. 

°= Henderson v. N. Y., 92 U. S. 259, 260; Soon Hing v. Crowley, 113 id. 
703, 710 ; Mugler v. Kansas, 123 id. 623, 661 ; Minnesota v. Barber, 136 id. 
313, 320. 

^KnatchbuU v. Hallett, 13 Ch. Div. 712; Ginesi v. Cooper, 14 id. 601; 
Ogden V. Saunders, 12 Wheat. 333. 



238 THE JUDICIAL POWER. 

question whose determination is not essential to the de- 
cision upon the facts of the cause is only obiter dictum 
and, although entitled to be received with great respect, 
it is not to be regarded as an authoritative precedent. The 
opinions of the judges are, therefore, of value only in so 
far as they ascertain the facts and deduce the rule whose 
application decides the cause. It would be well if dis- 
senting opinions were not published, and if the fact of 
any dissent were not recorded, for any dissent necessarily 
weakens the force of the judgment as a precedent. 

Treaties. 

108. Treaties, when duly ratified, are of inferior author- 
ity to the Constitution,®* but they are superior in authority 
to state legislation.^® Where there is a repugnancy be- 
tween a treaty and an act of Congress that which is of 
later date will prevail.®^ Where a treaty declares the 
rights and privileges which the citizens or subjects of a 
foreign nation may enjoy in the United States it, in gen- 
eral, operates by its own force, and does not require the 
aid of any congressional enactment.®^ While, as respects 
the rights and obligations of the contracting governments, 
a treaty is to be regarded as concluded and binding from 
the date of its signature,®^ yet as respects the effects of the 

"Geofroy v. Riggs, 133 U. S. 258, 267; Thomas v. Gay, 169 id. 264, 271. 

==U. S. V. Forty-three Gallons of Whiskey, 93 IT. S. 188; Hauenstein v. 
Lynham, 100 id. 483; Butler v. B. & S. S. Co., 130 id. 527; G., C. & S. F. 
Ky. V. Hefley, 158 id. 98; Ohio v. Thomas, 173 id. 276; Boske v. Comingore, 
177 id. 459; Easton v. Iowa, 188 id. 220. 

^«TJ. S. V. Schooner Peggy, 1 Cr. 103; Foster v. Neilson, 2 Pet. 253, 314; 
The Cherokee Tobacco, 11 Wall. 616; Head Money Cases, 112 TJ. S. 
580 ; Whitney v. Eobertson, 124 id. 190 ; Botiller v. Dominguez, 130 id. 238 ; 
The Chinese Exclusion Case, ibid. 581; Horner v. U. S,, 143 id. 570; Pong 
Tue Ting v. U. S., 149 id. 698 ; Wong Wing v. U. S., 163 id. 228 ; De Lima 
V. Bidwell, 182 id. 1. See also U. S. v, Lee Yen Tai, 185 id. 213. 

" Chirac v. Chirac, 2 Wheat. 259 ; Hughes v. Edwards, 9 id. 489, 496 ; Car- 
neal v. Banks, 10 id. 181; Hauenstein v. Lynham, 100 U. S. 483. But see 
Baldwin v. Franks; 120 U. S. 678. 

■"Dana's Wheaton's International Law, 36. 



LAW ADMINISTERED IN FEDERAL COURTS, 239 

treaty on the rights of citizens of the United States vested 
before the ratification of the treaty but subsequently to its 
signature, the treaty is not to be considered as a part of 
the supreme law of the land until after its ratifications 
have been exchanged, for the Senate may in process of 
ratification amend the treaty,^*^ and it cannot be known, 
until it be ratified, what it may command or prohibit.^* 
Treaties do not, unless they be in express terms retro- 
active, affect rights vested, or liabilities incurred, before 
their ratification.^^ The abrogation of a treaty operates 
only on future transactions, leaving imaffected previously 
executed transactions and vested property interests, but 
not personal and non-transferable rights.^^ 

The law administered in the federal courts. 

109. In criminal cases the jurisdiction of the courts of 
the United States is statutory and an indictment cannot 
be tried for a common-law offense. They, therefore, ad- 
minister on the criminal side only that jurisdiction which 
is granted by the Constitution, treaties, and statutes of the 
United States.^^ 

In civil causes, where the jurisdiction of the court de- 
pends on the character of the cause, as raising for decision 
a question of federal law, the only law that can be admin- 
istered therein is that of the Constitution, statutes, and 
treaties of the United States. But in causes where the 
jurisdiction attaches only by reason of the diverse citizen- 

^^ Art. II, Section 2, of the Constitution requires the advice and consent of 
the Senate, and the concurrence of two-thirds of the Senators present, to the 
making of any treaty by the President. 

«'U. S. V. Arredondo, 6 Pet. 691, 749; Haver v. Taker, 9 Wall. 32. 

*^ Prevost V. Greneaux, 19 How. 1 ; Frederickson v. Louisiana, 23 id. 445. 

«' Chinese Exclusion Case, 130 U. S. 581. 

«=> U. S. V. Hudson, 7 Cr. 32 ; U. S. v. Coolidge, 1 Wheat. 415 ; Penna. v. 
W. & B. Bridge, 13 How. 519. The United States have no common law 
Wheaton v. Peters, 8 Pet. 591; Smith v. Alabama, 124 U. S. 465, 478; 
W. U. T. Co. V. C. P. Co., 181 U. S. 92, 101. 



240 THE JUDICIAL, POWER. 

ship of the parties, the law administered ought to be that 
of the state within whose territory the court of the first 
instance sits, excepting, of course, in those causes in which 
the lex loci contractus differs from the lex fori, and the 
former law is applicable. The only reason that the fram- 
ers of the Constitution could have had for opening the 
courts of the United States to one who litigates only in 
right of diverse citizenship is the possibility of bias or 
prejudice against him in the state court. This reason for 
the jurisdiction was recognized by the Supreme Court in 
an early case,^* but later cases adopt a broader view, 
which must now be regarded as the established judicial 
theory of the constitutional intent. If a citizen of one 
state has a cause of action against a citizen of another 
state, and he brings his action in the courts of that other 
state his right is to have an impartial trial and to have 
his cause decided by the application of the law of that 
state. That law can only be found in the constitution and 
statutes of the state, as construed by the state court of last 
resort, and in the principles of the common, or civil, law, as 
the case may be, as recognized by the judicial decisions of 
the state court of last resort. When that litigant goes into 
a court of the United States to enforce that cause of action, 
the change of forum should not change the law which must 
be applied to and must decide the cause. Each state is en- 
titled as of right jus dare et jus dicere, to make the law and 

•"Polk's Lessee v. Wendell, 9 Cr. 87. Johnson, J., said: "The sole object 
for which jurisdiction of cases between citizens of different states is vested 
in the courts of the United States is to secure to all the administration of 
justice upon the same principles upon which it is administered between citi- 
zens of the same state. The Court, in a later and unanimous judgment, 
speaking by Bradley, J., said (Burgess v. Seligman, 107 U. S. 20, 34) : 
"The very object of giving to the national courts jurisdiction to ad- 
minister the laws of the states in controversies between citizens of different 
states was to institute independent tribunals which it might be supposed 
would be unaffected by local prejudices and sectional views." This broad 
statement is quoted with approval in the most recent case, G. S. F. H. 
Co. V. Jones, 193 U. S. 532, 544. 



LAW ADMINISTEEED IN FEDERAL. COUETS. 241 

to declare the law, as to all subject-matters of legislative 
and judicial determination, which have not been delegated 
by the Constitution to the United States ; and any subject- 
matter of which a court of the United States can only take 
jurisdiction by reason of the diverse citizenship of the 
parties is necessarily a subject-matter as to which the 
United States cannot legislate, and over which it ought not 
to exercise judicial jurisdiction otherwise than by apply- 
ing the law of the state. It is is true that the federal 
tribunals exercise as to such subject-matters an inde- 
pendent though concurrent jurisdiction, but it does not 
follow that the federal judges should be at liberty to ascer- 
tain and declare the law of the state according to their own 
judgment, not of what that law is, but of what that law 
ought to be. On the contrary, the law of the state like the 
law of a foreign country should be proven and found as a 
fact by the federal judges. The Judiciary Act of 1789 ®^ 
declares that ''the laws of the several states, except 
where the Constitution, treaties, or statutes of the United 
States shall otherwise require or provide, shall be 
regarded as rules of decision in trials at common law in 
the courts of the United States in cases where they apply. ' ' 
This statutory requirement ought to have been con- 
strued to require the application of state rules of law as 
evidenced by state constitutions, statutes, and judgments 
of state courts of last resort, in all cases where the juris- 
diction attaches solely by reason of diverse citizenship, 
but the court has held otherwise, and it is settled law, that 
while the courts of the United States will accept and follow 
a fixed construction by the judicial department of a state 
of its constitution and statutes,*^^ yet, when the decisions 

^^ Eev. Stat., see. 721. 

•*« Webster v. Cooper, 14 How. 488; Jackson v. Chew, 12 Wheat. 153, 167; 
Townsend v. Todd, 91 U. S. 452 ; H. F. L Co. v. C, M. & St. P. Ey., 175 id. 
91, 100; Dooley v. Pease, 180 id. 126. 



242 THE JIJDICIAL POWEE, 

of the state's court of last resort are not consistent the 
United States courts do not feel bound to follow the last 
decision ; ^'' nor will the federal courts follow a state de- 
cision rendered after the cause of action has accrued. 

Upon questions of general commercial law,^^ and ques- 
tions of real property law depending upon general prin- 
ciples of law,^^ and in actions upon contracts or upon 
questions of ''general jurisprudence of national or uni- 
versal application" "'^ the court will determine the law for 
itself and it will not follow state decisions which, in the 
judgment of the court, do not lay down the law as the 
federal courts hold that it ought to be laid down. 

The fundamental objection to this rule of the court is 
that, as Congress cannot under the Constitution legislate 
on any other than a federal subject-matter, the enforce- 
ment by the federal court, in controversies as to contracts, 
or commercial obligations, or title to real property, of a law 
different from the state law, as formulated in its acts of 
legislation and in the judgments of its courts, is nothing 
else than the establishment and enforcement of a body of 
judge-made law with no statutory basis, and without possi- 
bility of legislative amendment."^^ 

In causes of civil cognizance, where the federal court has 
acquired original jurisdiction under the Constitution and 
laws of the United States, it may protect rights and admin- 



" Pease v. Peck, 18 How. 595 ; Cross v. Allen, 141 U. S. 528 ; Burgess v. 
Seligman, 107 id. 20, 33; Carroll County v. Smith, 111 id. 556; S. T. Co. 
V. B. E. N. Bank, 187 id. 211. 

«« Swift V. Tyson, 16 Pet. 1. 

«» Town of Venice v. Murdock, 92 U. S. 494. 

'" Gelpcke v. Dubuque, 1 Wall. 175 ; O. L. & T. Co. v. Debolt, 16 How. 416, 
432; E. Co. v. Lockwood, 17 Wall. 357; Gates v. Nat. Bank, 100 U. S. 239; 
E. Co. V. Nat. Bank, 102 id. 14, 30, 31 ; Myrick v. M. C. E., 107 id. 102, 109 ; 
Pana v. Bowler, ibid. 529; BoUes v. Brimfield, 120 id. 759; Clark v. Bever, 
139 id. 96. 

" This subject is ably discussed in Mr. George Wharton Pepper 's brilliant 
essay upon ' ' The Borderland of Federal and State Decisions, ' ' 1887. 



COURTS MARTIAL AND IMPEACHMENTS. 243 

ister remedies not only under the Constitution, laws, and 
treaties of the United States, but also under the common 
law, as adopted by the state within which the court sits,'^^ 
the principles of equitable jurisprudence, "as distin- 
guished and defined in that country from whence we derive 
our knowledge of those principles, ' ' ''^ and the statutes of 
the state."^* 

In admiralty the maritime law is administered, "with 
such amendments and modifications as Congress may from 
time to time have adopted." "^^ 

Courts martial and impeachments. 

110. The judicial jurisdiction of the United States, 
except as regards offenses of soldiers and sailors against 
the Articles of War, and crimes punishable by impeach- 
ment, can only be exercised by courts duly constituted 
under the Constitution and the laws. Congress, therefore, 
cannot invest courts martial or military commissions with 
jurisdiction to try, convict, or sentence for any offense, a 
citizen not being a resident of a state in rebellion, nor a 
prisoner of war, nor in the military or naval service of the 



^■^ Parsons v. Bedford, 3 Pet. 433; Wheaton v. Peters, 8 id. 591; Parish 
V. Ellis, 16 id. 451; Ex parte BoUman and Swartwout, 4 Or. 75; Cross v. 
Allen, 141 U. S. 528 ; Dooley v. Pease, 180 id. 126 ; W. U. T. Co. v. C. P. Co., 
181 id. 92; cf. Swift v. Tyson, 16 Pet. 1; Bucher v. C. E., 125 U. S. 555; 
L. & G. W. S. Co. V. P. I. Co., 129 id. 397, 443; Clark v. Bever, 139 id. 96; 
T. & P. Ey. V. Cox, 145 id. 593; EUenwood v. M. C. Co., 158 id. 105. See 
also Pepper : ' ' Borderland of Federal and State Decisions. ' ' 

" Eobinson v. Campbell, 3 Wheat. 222 ; Livingston v. Story, 9 Pet. 632 ; 
Pennsylvania v. W. & B. Bridge Co., 13 How. 563; Holland v. Challen, 110 
U. S. 15; Eidings v. Johnson, 128 id. 212; Mississippi Mills v. Cohn, 150 id. 
202; Hollins v. B. C. & I. Co., ibid. 371; cf. Scott v. Neely, 140 id. 106. 

^* Edwards v. Elliott, 21 Wall. 532 ; The Lottawanna, iMd. 558 ; Ey. Co. v. 
Whitton, 13 id. 270; Ex parte Gordon, 104 U. S. 515; Ex parte Ferry Co., 
ibid. 519 ; Case v. Kelly, 133 id. 21 ; Turner v. Wilkes County Commissioners, 
173 id. 461 ; H. F. I. Co. v. C, M. & St. P. Ey., 175 id. 91 ; cf. Friedlander 
V. T. & P. Ey., 130 id. 416; C, M. & St. P. Ey. v. Solan, 169 id. 133. 

''^ In re Garnett, 141 U. S. 1, 14; supra, sec. 93. 



244 THE JUDICIAL, POWEE. 

United States.'^'' That which may be termed the extra- 
ordinary judicial power of the United States is exercised 
only by courts martial and in the trial of impeachments. 
Courts martial may exercise judicial jurisdiction with 
regard to offenses against the Articles of War by soldiers, 
sailors, and militiamen when called out for serviceJ^ 

The relevant provisions of the Constitution, as to im- 
peachments, are that, "the House of Eepresentatives 
shall . . . have the sole power of impeachment;"'^^ 'Hhe 
Senate shall have the sole power to try all impeachments. 
"When sitting for that purpose, they shall be on oath or 
affirmation. When the President of the United States is 
tried, the Chief Justice shall preside ; and no person shall 
be convicted without the concurrence of two-thirds of the 
members present. Judgment in cases of impeachment 
shall not extend further than to removal from office, and 
disqualification to hold and enjoy any office of honour, 
trust, or profit under the United States; but the party 
convicted shall nevertheless be liable and subject to in- 
dictment, trial, judgment and punishment, according to 
law. " '^'' ' ' The President, Vice-President and all civil 
officers of the United States, shall be removed from office 
on impeachment for, and conviction of, treason, bribery, 
or other high crimes and misdemeanors. " ^^ " The 
President shall . . . have power to grant reprieves and 
pardons for offenses against the United States, except in 
cases of impeachment. " ^^ " The trial of all crimes, except 

™£'a; parte Milligan, 4 Wall. 2. 

"Wise V. Withers, 3 Cr. 331; Houston v. Moore, 5 Wheat. 1; Martin v. 
Mott, 12 id. 19; Dynes v. Hoover, 20 How. 65; Ex parte Mason, 105 U. S. 
696; Keyes ■;;. U. S., 109 id. 336; Wales v. Whitney, 114 id. 564; Johnson 
V. Sayre, 158 id. 109. 

'^ Art. I, Sec. 2. 

'" Art. I, See. 3. 

«» Art. II, Sec. 4. 

«^Art. II, Sec. 2. 



THE IV AMENDMENT. 245 

in cases of impeaclunent, shall be by jury. " ^^ a ^q jjji} ^f 
attainder or ex post facto law shall be passed. ' ' ^^ The 
Supreme Court of the United States has never decided 
any question as to impeachment, but a consideration of 
the constitutional provisions shows clearly that, under 
them, the House of Representatives is the prosecutor; 
any civil officer of the United States may be the defendant ; 
the Senate of the United States is the court, its members 
being first sworn or affirmed, the Chief Justice of the Su- 
preme Court of the United States presiding in the case of a 
trial of the President, and a concurrence of two-thirds of 
the members present being necessary to a conviction ; the 
offenses for which an impeached officer may be tried 
being ''treason, bribery, or other high crimes and mis- 
demeanors," as defined by laws of the United States 
enacted before the commission of the offense ; the punish- 
ment extending only "to removal from office and dis- 
qualification to hold and enjoy any office of honour, trust, 
or profit under the United States, ' ' but without prejudice 
to indictment, trial, and conviction at law for the same 
oif ense ; and a presidential pardon not being pleadable in 
bar of the impeachment nor efficacious in satisfaction of a 
conviction after impeachment, or in mitigation of the 
punishment. 

The IV Amendment. 

111. The exercise of judicial power by the United 
States is, in some respects, limited by certain other of the 
provisions of the Constitution and its Amendments. In 
the most important case that ever came before the Su- 
preme Court,^* it was held that neither the President, nor 

'''Art. Ill, See. 2. 

'' Art. I, Sec. 9. 

*^ Ex parte Milligan, 4 Wall. 2. 



246 THE JUDICIAL POWER. 

the Congress, nor the Judicial Department can deny to a 
citizen any one of the safeguards of civil liberty incor- 
porated into the Constitution, and in that cause a citizen 
who was held in custody under a sentence of death pro- 
nounced by a military commission was released upon 
habeas corpus. The last clause of Section 2 of Article III 
of the Constitution declares that ''the trial of all crimes, 
except in cases of impeachment, shall be by jury ; and such 
trial shall be held in the state where the said crimes shall 
have been committed ; but when not committed within any 
state, the trial shall be at such place or places as the 
Congress may by law have directed." This clause con- 
trols criminal proceedings in the District of Columbia.*^ 
It does not prohibit the establishment of consular tribunals 
in foreign lands ; ^^ or the waiver of jury trial for minor 
oifenses.*^ The IV Amendment declares that "the right 
of the people to be secure in their persons, houses, papers, 
and effects, against unreasonable searches and seizures, 
shall not be violated, and no warrants shall issue, but upon 
probable cause, supported by oath or affirmation, and 
particularly describing the place to be searched, and the 
persons or things to be seized, ' ' This Amendment forbids 
Congress to authorize a court in revenue cases to require, 
on motion of the government's attorney, the defendant, or 
claimant, to produce in court his books, papers, etc., 
under penalty of admitting the allegations of the govern- 
ment's attorney as to that which those books, papers, etc., 
would prove if produced.^^ 

^^ Callan v. Wilson, 127 U. S. 540. 

^^ In re Eoss, 140 U. S. 453. 

*^ Schick V. tr. S., 195 U. S. 65 ; Harlan, J,, dissented. On the same 
clause, see also N., C. & St. L. Ey. v. Alabama, 128 id. 96; In re Debs, 158 
id. 564, 581. 

«Boyd V. U. S., 116 U. S. 616. See also Adams v. New York, 192 id. 
585, for a discussion of the Amendment. 



THE V AMENDMENT — DUE PEOCESS OF LAW. 247 

The V Amendment— fa j Due process of law. 

112. The V Amendment ^'^ declares, that "no person 
shall be held to answer for a capital, or otherwise in- 
famous crime, unless on a presentment or indictment of 
a grand jury, except in cases arising in the land or naval 
forces, or in the militia, when in actual service in time of 
war or public danger." This constitutional provision 
forbids a prosecution upon information in the courts of 
the United States in the cases of crimes punishable by 
imprisonment for a term of years at hard labour .^^ But 
a court may, for professional misconduct, strike an attor- 
ney from its rolls ; ^^ and a court martial may try a naval 
officer in time of peace, the qualification ''when in actual 
service in time of war or public danger" applying only 
to the militia.^ ^ This Amendment also forbids the trial 
or conviction of a prisoner in a case where after present- 
ment made by the grand jury, the indictment is without re- 
submission to the grand jury, amended by striking out 
words, even though those words be regarded by the court 
as surplusage, and a prisoner, after trial, conviction, and 
sentence on an indictment so amended, is entitled to his 
discharge on habeas corpus.^^ The same Amendment also 
declares that no person shall "be deprived of life, lib- 
erty, or property, without due process of law. ' ' In Mur- 
ray 's Lessee v. H. L. & I. Co.,''^ Curtis, J., said, "The words 

** The V Amendment is a restraint upon the exercise of powers by the 
united States, but not by the states: Barron v. Baltimore, 7 Pet. 243; 
Withers v. Buckley, 20 How. 84; Davidson v. New Orleans, 96 U. S. 97; 
Kelly V. Pittsburgh, 104 id. 78; Thorington v. Montgomery, 147 id. 490; 
C. C. D. Co. V. Ohio, 183 id. 238; Ohio v. Dollison, 194 id. 445; nor by an 
Indian tribe : Talton v. Mayes, 163 id. 376. 

^Ex parte Wilson, 114 U. S. 417; Mackin v. U. S,, 117 ia. 348; Parkin- 
son V. U. S., 121 id. 281; U. S. v. De Walt, 128 id. 393. 

"^Ex parte Wall, 107 U. S. 265. 

•*- Johnson v. Sayre, 158 U. S. 109. 

"^Ex parte Bain, 121 U. S. 1. 

»* 18 How. 272, 276. 



248 THE JUDICIAL POWEK. 

'due process of law' were undoubtedly intended to convey 
the same meaning as the words 'by the law of the land' 
in Magna Charta. Lord Coke, in his commentary on 
those words,^^ says they mean due process of law. The 
constitutions, which had been adopted by the several states 
before the formation of the federal Constitution, follow- 
ing the language of the great charter more closely, gener- 
ally contained the words, 'but by the judgment of his 
peers, or the law of the land.' . . . The Constitution con- 
tains no description of those processes which it was 
intended to allow or forbid. It does not even declare what 
principles are to be applied to ascertain whether it be due 
process. It is manifest that it was not left to the legisla- 
tive power to enact any process which might be devised. 
The Article is a restraint on the legislative as well as on 
the executive and judicial powers of the government, and 
cannot be so construed as to leave Congress free to make 
any process due process of law by its mere will. To what 
principle, then, are we to resort to ascertain whether this 
process, enacted by Congress, is 'due process.' To this 
the answer must be twofold. We must examine the Con- 
stitution itself to see whether this process be in conflict 
with any of its provisions. If not found to be so, we must 
look to those settled usages and modes of proceeding 
existing in the common and statute law of England, before 
the emigration of our ancestors, and which are shown not 
to have been unsuited to their civil and political conditions 
by having been acted on by them after the settlement 
of this country. '"^^ In a later case. Field, J., said 

^^ 2 Inst. 50. 

""In Holden v. Hardy, 169 U. S. 366, 385, which arose under the XIV 
Amendment, Brown, J., while quoting the language of Curtis, J,, said that 
the court "has not failed to recognize the fact that the law is, to a certain 
extent, a progressive science ; that in some of the states methods of procedure, 
which at the time the Constitution Avas adopted were deemed essential to the 
protection and safety of the people, or to the liberty of the citizen, have been 



THE V AMENDMENT — DUE PROCESS OF LAW. 249 

that the words, "due process of law,'' mean ''a course 
of legal proceedings, according to those rules and prin- 
ciples which have been established in our system of juris- 
prudence for the protection and enforcement of private 
rights. To give such proceedings any validity, there must 
be a tribunal competent by its constitution, that is, by the 
law of its creation, to pass upon the subject-matter of the 
suit; and, if that involves merely a determination of the 
personal liability of the defendant, he must be brought 
within its jurisdiction by service of process within the 
state, or by his voluntary appearance. ' ' ^"^ In conformity 
with these principles it has been held, that the trial of a 
citizen by military commission within a state where the 
courts are open and the course of justice unobstructed 



found to be no longer necessary. . . . The whole fabric of special pleading, 
once thought to be necessary to the elimination of the real issue between 
the parties, has crumbled to pieces. . . . Witnesses are no longer incom- 
petent by reason of interest, even though they be parties to the litigation. 
Indictments have been simplified, and an indictment for the most serious 
of crimes is now the simplest of all. In several of the states grand juries, 
formerly the only safeguard against a malicious prosecution, have been 
largely abolished, and in others the rule of unanimity, so far as applied 
to civil cases, has given way to verdicts rendered by a three-fourths majority. 
This case does not call for an expression of opinion as to the wisdom of 
these changes, or their validity under the XIV Amendment. . . . They 
are mentioned only for the purpose of calling attention to the probability 
that other changes of no less importance may be made in the future, and 
that while the cardinal principles of justice are immutable, the methods 
by which justice is administered are subject to constant fluctuation, and that 
the Constitution of the United States, which is necessarily and to a large 
extent inflexible and exceedingly difficult of amendment, should not be 
so construed as to deprive the states of the power to so amend their laws 
as to make them conform to the wishes of the citizens as they may deem 
best for the public welfare without bringing them into conflict with the 
supreme law of the land. Of course, it is impossible to forecast the char- 
acter or extent of these changes, but in view of the fact that from the day 
Magna Charta was signed to the present moment, amendments to the struc- 
ture of the law have been made with increasing frequency, it is impossible 
to suppose that they will not continue, and the law be forced to adapt 
itself to new conditions of society." 
"^ Pennoyer v. Neff, 95 U. S. 714, 733. 



250 THE JUDICIAL. POWER. 

is not due process of law.*'^ It has also been held that 
there is a deprivation of liberty without due process of 
law when a court by its order, warrant, or commitment, 
holds a prisoner in custody, when the prima facie case 
against the prisoner does not show that he has committed 
an offense of which the court committing him can take 
cognizance, and in any such case of commitment by an 
inferior court of the United States the Supreme Court 
will issue a habeas corpus and discharge the prisoner.^^ 

On the other hand, it has been held that the owner of 
property distrained and sold for non-payment of taxes 
due to the United States, is not deprived of his property 
without due process of law.^^^ It has also been held that 
an officer of the United States, whose accounts, as settled 
by the auditing officers of the Treasury, show him to have 
neglected to account for and pay over public moneys 
received by him, is not deprived of his property without 
due process of law, when the Solicitor of the Treasury, in 
obedience to an act of Congress has issued a distress war- 
rant under which the defaulting officer's real property 
has been taken in execution and sold by a marshal of the 
United States without further proceedings, judicial, or 
otherwise.^ 

^ Ex parte Milligan, 4 Wall. 2. 

"' United States v. Hamilton, 3 Dall. 17 ; Ex parte BoUman and Swart- 
wout, 4 Cr. 75; Ex parte Kearney, 7 Wheat. 38; Ex parte Wells, 18 How. 
307 ; Ex parte Lange, 18 Wall. 163 ; Ex parte Parks, 93 U. S. 18 ; Ex parte 
Yarbrough, 110 U. S. 651; U. S. v. WaddeU, 112 id. 76; Hans Nielsen, 
Petitioner, 131 id. 176; In re Swan, 150 id. 637; In re McKenzie, Peti- 
tioner, 180 id. 536. See also Cosgrove v. Winney, 174 id. 64. 

^°° Springer v. U. S., 102 U. S. 586. 

1 Murray 's Lessee v. H. L. & I. Co., 18 How. 272. 

The constitutional requirement is designed to prevent the arbitrary exer- 
cise of the powers of government. See Sec. 117, infra. In trials within 
a court of justice the defendant must be given a hearing before judgment 
can be pronounced against his property or against himself, and the rights 
which are secured to him by other provisions of the Constitution, such as 
the right to trial by jury, must be held sacred. See Sec. 117, infra; cf. 
Ex parte Terry, 128 U. S. 289. But the requirement of due process of 



THE V AMENDMENT — JEOPAEDY. 251 

The V Amendment— ("6 j Jeopardy, etc. 

"Nor shall any person be subject for the same offense 
to be twice put in jeopardy of life or limb." "Every- 
body agrees that the principle in its origin was a rule 
forbidding a trial in a new and independent case where a 
man had already been tried once. ' ' ^ Nevertheless there 
may be a second trial if the jury disagree,^ or if a verdict 
against the prisoner is set aside on his motion for error 
at the trial.'^ But a prisoner in the Philippine Islands 
having been tried and acquitted by the court of the first 
instance, and upon appeal by the government, the finding 
of acquittal having been reversed by the appellate tribunal 
in the islands, and the prisoner sentenced to imprison- 

law does not of itself control mere forms of procedure or require the follow- 
ing of any one course of action in all cases; the Amendment is complied 
■with if, in each case, a procediu'e be adopted which is appropriate to the 
end sought: Hanover Nat. Bank v. Moyses, 186 U. S. 181. It is not 
necessary that the entire work of government be transacted in a court- 
room, in the presence of judge and jury. Congress may grant to executive 
officers the power to exclude or expel aliens: The Japanese Immigrant 
Case, 189 U. S. 86; II. S. v. Williams, 194 id. 279; cf. Wong Wing v. 
U. S., 163 id. 228; to exclude sub-standard proposed imports: Buttfield v. 
Stranahan, 192 U. S. 470; and to refuse delivery of mail to persons seeking 
to defraud: Public Clearing House v. Coyne, 194 U. S. 497. Taxes and 
assessments may be levied, and property may be taken for public use, by 
special commissions; and the Constitution is complied with when the tax- 
payer or property-owner is given an opportunity for a hearing at some 
stage of the proceedings: Bauman v. Eoss, 167 U. S. 548; Wilson v. Lam- 
bert, 168 id. 611; Wight v. Davidson, 181 id. 371. So also. Congress may, 
in the ordinary course of legislation, prohibit the making of contracts in 
restraint of interstate commerce without thereby depriving any citizen of 
his liberty without due process of law: A. P. & S. Co. v. U. S., 175 U. S. 
211. And Congress may impose an excise upon artificially coloured oleo- 
margarine, although it does not tax butter which is artificially coloured, 
and although the effect of the tax is to suppress the manufacture of such 
oleomargarine: McCray v. U. S., 195 U. S. 27; Fuller, C. J., Brown and 
Peckham, JJ., dissenting. On congressional legislation, see also Mormon 
Church V. U. S., 136 U. S. 1. 

= Per Holmes, J., Kepner v. U. S., 195 U. S. 100, 134. 

^U. S. V. Perez, 9 Wheat. 579. 

*Hopt V. People, 104 U. S. 631, 635; Hopt v. Utah, 110 id. 574; 114 id. 
488, 492 ; 120 id. 430, 442 ; U. S. v. Ball, 163 id. 662, 672. 
17 



252 THE JUDICIAL, POWER. 

ment, the Supreme Court held^ that the government's 
appeal twice put the prisoner in jeopardy. When a court 
imposes a fine and imprisonment as a punishment where 
the statute under which the prisoner was indicted con- 
ferred the power to punish by fine or imprisonment, and 
the fine has been paid, the court cannot modify its judg- 
ment by thereafter imposing imprisonment alone, for the 
judgment of the court having been executed so as to be a 
full satisfaction of one of the alternative penalties, the 
power of the court as to that offense is ended, and a second 
judgment on the same verdict, is, under such circum- 
stances, void for want of power, and the party must be 
discharged.*^ So also where one of three defendants 
jointly indicted for murder has been acquitted and his 
associates have been convicted, upon a setting aside of the 
verdicts because of a defect in the indictment, the verdict 
of acquittal upon the merits is a bar to a second trial of 
the person acquitted ; but the defendants who have availed 
themselves of the invalidity of the first indictment cannot, 
upon the granting of a new trial, claim that their lives are 
for a second time jeopardized.^ Moreover, a court may, 
when necessary, discharge a jury from giving a verdict 
and order a trial by another jury, and the defendant is 
not thereby twice put in jeopardy within the meaning of 
the Constitution.^ 

The V Amendment also declares, that no person ' ' shall 
be compelled, in any criminal case, to be a witness against 
himself." In Brown v. Walker,® it was held that this 

^ Kepner v. U. S., 195 U. S. 100 ; Holmes, White, and McKenna, JJ., dis- 
senting. 

"Ex parte Lange, 18 Wall. 163; cf. Callan v. Wilson, 127 U. S. 540, 557; 
Carter v. McClatighry, 183 id. 365. 

' U. S. V. Ball, 163 U. S. 662. 

* Thompson v. U. S., 155 U. S. 271. See also Dreyer v. Illinois, 187 
id. 71. 

•161 U. S. 591. 



THE VI AMENDMENT. 253 

provision does not protect a witness who refuses to answer 
a question when he is by law afforded absolute immunity, 
federal and state, for the offense to which the question 
relates. ''The fact that the testimony may tend to de- 
grade the witness in public estimation does not exempt 
him from the duty of disclosure. ' '^^^ 

The provision that private property shall not be taken 
for public use without just compensation entitles a pat- 
entee to payment for the use of his invention,^ ^ and it 
entitles a corporation to compensation for the taking of a 
franchise to exact tolls as well as for the value of the 
tangible property taken ; ^^ but payment need not be made 
until the actual possession of land has passed,^^ benefits 
to the property left may be set off against damages for 
the property taken,^^ and compensation for an indirect 
injury to property need not be made.^^ Yet where, by the 
construction of a dam, the United States so floods lands 
belonging to an individual as to totally destroy its value, 
compensation must be rendered.^ ^ Congress does not 
deprive a contestant of a pre-emption entry on public 
lands of his property by confirming the title of the orig- 
inal entryman, for during the pendency of the contest the 
contestant has no vested right.^^ 

The VI Amendment. 

113. The VI Amendment declares tliat, ''in all criminal 
prosecutions, the accused shall enjoy the right to a speedy 
and public trial, by an impartial jury of the state and 

^° p. 605. Four justices dissented. 
" Belknap v. SchLld, 161 U. S. 10. 
^^ M. N. Co. V. U. S., 148 U. S. 312. 
" Cherokee Nation v. S. K. Ey., 135 U. S. 641. 
" Bauman v. Eoss, 167 U. S. 548. 

^= Scranton v. Wheeler, 179 U. S. 141 ; Gibson -j;. U. S., 166 id. 269 ; Bed- 
ford V. U. S., 192 id. 217. 

^"U. S. V. Lynah, 188 U. S. 445; of. Bedford v. U. S., 192 id. 217. 
" Emblen v. L. L. Co., 184 U. S. 660. 



254 THE JUDICIAL, POWEE. 

district wherein the crime shall have been committed, 
which district shall have been previously ascertained by 
law, and to be informed of the nature and cause of the 
accusation; to be confronted with the witnesses against 
him; to have compulsory process for obtaining witnesses 
in his favour, and to have the assistance of counsel for his 
defense. "^^ 

This Amendment, of course, applies only to criminal 
proceedings ; ^® and the right to trial by jury may be 
waived by persons charged with minor offenses.^^ When 
the crime has been committed within the territories Con- 
gress may designate the place of trial at any time previous 
to the trial.^^ An indictment for sending obscene matter 
through the mail need not set forth the objectionable 
language in fuU.^^ The requirement that the prisoner 
''be confronted with the witnesses against him" will not 
invalidate a conviction in a case where the witnesses are 
absent by the procurement of the prisoner, or where 
enough has been proven to throw on him the burden of 
showing, and he having full opportunity therefor, fails 
to show, that he has not been instrumental in concealing 
or keeping away the witnesses, and ground having been 
thus laid, evidence is admissible against him of that which 
the witnesses testified at a previous trial on the same issue 
between the United States and the prisoner.^^ In the 
event of the death of witnesses for the prosecution, testi- 
mony given by those witnesses at a previous trial 

^* This Amendment is a restraint upon the judicial action of the United 
States, and not of the states: Twitchell v. The Commonwealth, 7 Wall. 321. 

^^U. S. V. Zucker, 161 U. S. 475; Ex parte Terry, 128 id. 289; Fong 
Yue Ting v. U. S., 149 id. 698; Wong Wing v. U. S., 163 id. 228; U. S. 
V. Williams, 194 id. 279. 

^ Schick V. U. S., 195 U. S. 65. Harlan, J., dissented. 

'^Cook V. U. S., 138 U. S. 157. See also Art. Ill, Sec. 2; supra, sec. 111. 

2^ Eosen v. U. S., 161 U. S. 29. 

^^'Eeynolds v. U. S., 98 U. S. 145. 



THE Yll AND VIII AMENDMENTS. 255 

on the same issue is admissible ; ^* but their evidence is 
not admissible when their absence is due to negligence of 
the officers of the government.^^ And in a trial for receiv- 
ing stolen property, the record of the conviction of the 
thief cannot be admitted in evidence to prove the theft.^^ 

The VII and VIII Amendments. 

114. The VII Amendment declares, that, ''in suits at 
common law, where the value in controversy shall exceed 
twenty dollars, the right of trial by jury shall be pre- 
served. ' ' 2^ This Amendment does not affect equity 
causes in the federal courts, for the determination by a 
court of equity, according to its own course and practice 
of issues of fact, does not impair the right of trial by jury, 
because that right does not extend to causes of equitable 
jurisdiction.-^ Nor does this Amendment affect proceed- 
ings upon claims against the United States heard in the 
Court of Claims without the intervention of a jury, for the 
government being suable only by its own consent, may 
declare in what court it will be sued, and may prescribe 
the forms of pleading and rules of practice in that court, 
and such claims so prosecuted are not suits at common 
law.^^ Nor does it affect proceedings before a commis- 
sion created for the purpose of hearing and deciding upon 
claims against a territorial municipal corporation which 
have no legal obligation, but which have such equity as 

^*Mattox V. U. S., 156 U. S. 237. 

-= Motes V. V. S., 178 U. S. 458. 

'■^ Kirby v. U. S., 174 U. S. 47. 

^^ This Amendment is a restraint upon the exercise of powers by the 
United States, but not by the states: Edwards v. Elliott, 21 Wall. 532; 
Walker v. Sauvinet, 92 U. S. 90 ; Pearson v. Tewdall, 95 id. 294. 

^ Barton v. Barbour, 104 U. S. 126 ; Parsons v. Bedford, 3 Pet. 433, 446. 
But where a plaintiff has an appropriate remedy at law he cannot seek 
relief in a coiu-t of equity: Whitehead v. Shattuck, 138 U. S. 146; Gates 
V. Allen, 149 id. 451. 

^McElrath v. V. S., 102 U. S. 426. 



256 THE JUDICIAL POWEE. 

to cause provision to be made for their investigation and 
payment when found proper.^** Nor does this Amend- 
ment relieve a party from the consequences of his ante- 
cedent voluntary relinquishment of a right of trial by 
jury in any particular cause, as, for instance, in the case 
of a banking corporation whose state charter stipulates 
that the bank should have a summary remedy by execution 
without jury trial for the collection of notes indorsed 
to it, and in express terms made negotiable at the bank.^^ 
Nor is the granting of a nonsuit for want of sufficient 
evidence an infringement of the constitutional rights of 
the plaintiff .^^ In all cases, however, in which the right 
of trial by jury is secured by the Constitution the jury 
must be unanimous in rendering its verdict.^^ The VII 
Amendment also declares that "no fact tried by a jury 
shall be otherwise re-examined in any court of the United 
States than according to the rules of the common law." 
As Story, J., said in Parsons v. Bedford,^^ ''This is a 
prohibition to the courts of the United States to re- 
examine any facts tried by a jury in any other manner. 
The only modes known to the common law to re-examine 
such facts, are the granting of a new trial by the court 
where the issue was tried, or to which the record was 
properly returnable; or the award of a venire facias de 
novo by an appellate court, for some error of law which 
intervened in the proceedings." The Amendment ob- 
viously governs both the original and appellate jurisdic- 
tion of the courts of the United States, and forbids the 
reversal of a verdict of a jury save as above indicated. 
But facts tried by a jury before a justice of the peace 

^"Guthrie Nat. Bank v. Guthrie, 173 U. S. 528. 
^^ Bank of Columbia v. Okely, 4 Wheat. 235. 
'" Coughran v. Bigelow, 164 U. S. 301. 

^A. P. Co. V. Fisher, 166 U. S. 464; Springville v. Thomas, Salt Lake 
City V. Tucker, ibid. 707. 
»* 3 Pet. 447. 



THE VII AND VIII AMENDMENTS. 257 

may be tried anew by a jury in the appellate court, for a 
trial by jury in the sense of the common law and of the 
VII Amendment involves the presence of a judge having 
the usual powers of superintending the course of the trial, 
instructing the jury on the law and advi^g them on the 
facts, and setting aside their verdict if in his opinion 
against the law or the evidence.^^ And a trial couri^may 
make its decision of a motion for a new trial depend upon 
a remission of part of the verdict.^^ On the other hand. 
Congress cannot by statute provide for the removal from 
a state court into a federal court of causes tried by jury 
in the state court, and for a retrial in the federal court of 
the facts and law in such action in the same manner as if 
the same had been originally commenced in the federal 
court.^^ 

The VIII Amendment declares that ' ' excessive bail shall 
not be required, nor excessive fines imposed, nor cruel and 
unusual punishments inflicted." This Amendment re- 
stricts national and not state legislative and judicial ac- 
tion.^^ Neither shooting to death,^^ nor electrocution,*^ 
as modes of inflicting the death penalty after trial, convic- 
tion, and sentence in a court of proper jurisdiction, nor a 
fine of fifty dollars and three months' imprisonment at 
hard labour for selling liquor in violation of law,*^ nor ten 
years' imprisonment for conspiracy to defraud, nor the 
infliction upon one prisoner of a heavier punishment than 
that inflicted upon another prisoner for an identical 

» C. T. Co. V. Hof, 174 U. S. 1. 

="*A. V. L. & C. Co. V. Mann, 130 U. S, 69. 

"The Justices v. Murray, 9 Wall. 274; C, B. & Q. R. v. Chicago, 166 
U. S. 226. 

^Pervear v. The Commonwealth, 5 Wall. 475; O'Neil v. Vermont, 144 
U. S. 323. 

™ Wilkerson v. Utah, 99 U. S. 130. 

*" In re Kemmler, 136 IT. S. 436. 

" Pervear v. The Commonwealth, 5 Wall. 475. 



258 



THE JUDICIAL POWEE. 



offense,*^ ^an be regarded as a violation of the VIII 
Amendment. 

The first ten Amendments were proposed by the first 
Congress for adoption by the states and were intended to 
constitute a federal Bill of Rights. These Amendments 
constitute restrictions upon the United States and they 
are obviously not restrictions upon the legislative or 
judicial powers of the states. 

The XI Amendment. 

115. The Supreme Court having, in Chisholm v. 
Greorgia,^^ affirmed its orginal jurisdiction in actions 
brought by citizens of one state against another state, in 
1797 the XI Amendment was adopted, declaring that ' ' the 
judicial power of the United States shall not be construed 
to extend to any suit in law or equity, commenced or 
prosecuted against one of the United States by citizens 
of another state, or by citizens or subjects of any foreign 
state. ' ' That Amendment having taken effect on 8th Janu- 
ary, 1798, in that year the Supreme Court decided in 
Hollingsworth v. Virginia,^* that the Amendment barred 
any further proceedings in cases then depending in the 
courts of the United States in which a citizen of one state 
was the plaintiff, and another state was the defendant. 
In Osborn v. Bank of U. S.,^^ Marshall, C. J., said: 
' ' The XI Amendment ... is of necessity limited to those 
suits in which a state is a party to the record," but he 
added,**^ ''the state not being a party to the record, and 
the court having jurisdiction over those who are parties 
on the record, the true question is not one of jurisdiction, 

*= Howard v. Fleming, 191 U. S. 126. 

«2 Dall. 419. 

" 3 Dall. 378. 

«9 Wheat. 738, 857. 

*<=P. 858. 



THE XI AMENDMENT. 259 

but whether in the exercise of its jurisdiction, the court 
ought to make a decree against the defendants; whether 
they are to be considered as having a real interest, or as 
being only nominal defendants." On the other hand he 
said,^'^ ^'This suit is not against the state of Ohio within 
the view of the Constitution, the state being no party on 
the record. ' ' The jurisdictional question in the cause was 
as to the power of the court to take cognizance of a suit 
in equity brought by the Bank of the United States 
against the auditor of the state of Ohio to enjoin the col- 
lection of a tax on the business of the bank imposed by a 
statute of Ohio, and to recover a sum of money wrong- 
fully taken out of the vaults of the bank by the state 
auditor by way of enforcing the payment of the tax, and 
the court sustained the jurisdiction on the grounds stated 
by the chief justice. In view of the judgment in the 
cause and the dicta of the chief justice, it was not un- 
natural that the presence or absence of a state as a party 
defendant on the record should have been regarded as the 
criterion by which to determine whether or not a suit was 
within the purview of the XI Amendment. Indeed in Davis 
V. Grray,^^ the court went so far as to hold that a receiver 
of a railway could sue in equity the governor of the state 
incorporating the railway and the land commissioner of 
the state to restrain the issue of patents to individuals 
for certain lands theretofore granted by the state to the 
railway on certain conditions, and resumed by the state 
for alleged non-performance of the condition, and that it 
not being possible to make the state a party the plaintiff's 
rights could be vindicated by a decree against the officers 
of the state, but the later decisions of the court have tended 
toward the establishment of a sounder rule on this sub- 
ject; and it is now settled, that the criterion is not the 

"P. 868. 

" 16 WaU. 203. 



260 THE JUDICIAL POWER. 

presence or absence of the state as a party defendant on 
the record, but the question of fact, is or is not the suit 
in substance, though not in form, a suit by a citizen of 
another state against a state! If a state be either a de- 
fendant on the record, or the real defendant though not 
a party on the record, the XI Amendment forbids the 
court to take jurisdiction of the cause, unless the state 
by its voluntary appearance, as in Clark v. Barnard,*^ 
submits itself to the jurisdiction of the court. In con- 
formity with this view it has been held that a suit by, or 
against, the governor of a state in his representative 
capacity is a suit against the state ; ^^ that the XI Amend- 
ment prohibits a suit in the federal courts against the 
officers of a state to enforce the performance of a contract 
made by the state, where the controversy is as to the 
validity and obligation of the contract, and where the rem- 
edy sought is a performance of the contract by the state, 
the nominal defendants having no personal interest in the 
subject-matter ; ^^ it has also been held that where a state 
had bought a railway from a receiver appointed at its 
instance, as the holder of the first mortgage bonds of 
the railway, the holders of junior bonds having filed a 
bill to foreclose their mortgage and to set aside the sale to 
the state, making the governor and treasurer of the state 
parties defendant, the state being a necessary party to 
the relief sought, the XI Amendment barred the suit ; ^^ 
and that state officers cannot be compelled, at the suit of 
a citizen of another state, to appropriate the public money 

" 108 U. S. 436, 447. 

•'° Georgia v. Brailsf ord, 2 Dall. 402 ; The Governor of Georgia v. Mad- 
razo, 1 Pet. 110; Kentucky v. Dennison, 24 How. 66. 

^^ Hagood V. Southern, 117 U. S. 52 ; Governor of Georgia v. Madrazo, 
1 Pet. 110; Louisiana v. Jumel, 107 U. S. 711; North Carolina v. Temple, 
134 id. 22; Louisiana v. Steele, ibid. 230. See also Chandler v. Dix, 194 
id. 590. 

■*" Cunningham v. M. & B. E., 109 U. S, 446. 



THE XI AMENDMENT. 261 

of the state in a way prohibited by the laws of the state, 
for such a suit is in fact against the state, and where a 
state cannot be sued, the court cannot assert jurisdiction 
over the officers of the state, so as to control them in their 
administration of the finances of the state.^^ It has also 
been held that the XI Amendment bars a suit by one state 
against another state, where the plaintiff state sues, not 
in its own right, but only for the benefit of certain of its 
citizens who have assigned to it their claims against the 
state defendant ; ^* that a private person cannot bring a 
personal suit in the Supreme Court of the United States 
against a state to recover the proceeds of property in the 
possession of that state, such as the proceeds of certain 
slaves alleged to have been illegally seized by the state,^^ 
and, in the case of In re Ayers,^^ that the XI Amendment 
forbids the court to take jurisdiction of a bill in equity 
filed by a holder of, and dealer in, coupons of the bonds of 
the state, the coupons under the statutes of the state and 
the judgments of the court being receivable in payment 
of state taxes, to enjoin the officers of a state from prose- 
cuting, on behalf of the state, actions against citizens of 
the state for collection of taxes, under a statute of the 
state directing the prosecution of the actions, and provid- 
ing that ' ' if the defendant relies on a tender of coupons as 
payment of the taxes claimed, he shall plead the same 
specifically and in writing, and file with the plea the 
coupons averred therein to have been tendered," and ''the 
burden of proving the tender and the genuineness of the 
coupons shall be on the defendants ; " the equity set up by 
the plaintiffs in the injunction suit being that they had 

■•= Louisiana v. Jumel, 107 U. S. 711. 

^ New Hampshire v. Louisiana, New York v. Louisiana, 108 U. S. 76 ; cf. 
South Dakota v. North Carolina, 192 id. 286. 

'^^ Ex parte Madrazzo, 7 Pet. 627; The Governor of Georgia v. Madrazo, 
1 Pet. 110. 

=^^12.3 U. S. 443. 



262 THE JUDICIAL, POWER. 

purchased coupons for the purpose of dealing in them and 
selling them to taxpayers to use in payment of taxes to 
the state, and that, unless the action threatened by the 
state officers were enjoined, the plaintiffs would not be 
able to sell their coupons at a profit. So, also, suit cannot 
be maintained against a state officer to compel the levying 
of a special tax for the benefit of bondholders.^'^ On the 
other hand, it has been held that the Amendment does not 
protect from suit a county of a state,^^ nor prohibit the ex- 
ercise by the court of its appellate jurisdiction over state 
courts in cases of criminal cognizance, for the purchase 
or prosecution of a writ of error to reverse a criminal 
conviction at the prosecution of the state is not the com- 
mencement or prosecution of a suit at law against that 
state ; ^^ nor does the XI Amendment prohibit the exercise 
by the court of jurisdiction over a controversy between 
individuals as to land granted by and claimed under a 
state ; ^^ nor does the fact that a state is a, or the sole, 
shareholder in a banking corporation prevent the courts 
of the United States from taking cognizance of a suit 
against such a corporation,^^ for, as Marshall, C. J., said,^^ 
''when a government becomes a partner in any trading 
company, it divests itself, so far as concerns the transac- 
tions of that company, of its sovereign character, and 
takes that of a private citizen. ' ' Nor does the fact that a 

"N. C. V. Temple, 134 U. S. 22 j Louisiana v. Steele, ibid. 230. And, 
although it is not forbidden by the Amendment, a suit against a state 
cannot be brought by one of its own citizens, nor by a corporation created 
by the federal government, even when a federal question is involved: 
Hans V. Louisiana, 134 II. S. 1; Smith v. Keeves, 178 id. 436. 

^« Lincoln County v. Luning, 133 U. S. 529, 

™ Cohens v. Virginia, 6 Wheat. 264. 

"^ Fowler v. Lindsey, 3 Call. 411. 

"^L., C. & C. E. V. Letson, 2 How. 497, 550; Bank of U. S. v. Planters' 
Bank, 9 Wheat. 904, 907; Bank of Kentucky v. Wister, 2 Pet. 318, 323; 
Briscoe v. Bank of Kentucky, 11 Pet. 257, 324; Curran v. Arkansas, 15 How. 
304, 309. 

^-9 Wheat. 907. 



THE XI AMENDMENT. 263 

state claims property, which is not in its own possession 
but in the possession of an individual who has been made 
defendant in an action to recover that property, oust the 
jurisdiction of the court of the United States, nor forbid 
the court to give judgment in favour of the plaintiff.^^ 
It is likewise well settled, that ' ^ when a plain official duty, 
requiring no exercise of discretion, is to be performed" 
by an officer of a state, ' ' and performance is refused, any 
person who will sustain personal injury by such refusal 
may have a mandamus to compel its performance; and 
when such duty is threatened to be violated by some 
positive official act, " of an officer of a state, ' ' any person 
who will sustain personal injury thereby, for which ade- 
quate compensation cannot be had at law, may have an 
injunction to prevent it, ' ' ®* or he may maintain an action 
at law for damages against the officer as a wrongdoer. ' ' In 
either case, if the officer plead the authority of an uncon- 
stitutional law for the non-performance or violation of 
his duty, it will not prevent the issuing of a writ. An 
unconstitutional law will be treated by the courts as null 
and void. " ^^ In conformity with this principle, it has 
been held that the XI Amendment does not forbid the 

•^ U. S. V. Peters, 5 Cr. 115. 

^ Per Bradley, J., in Board of Liquidation v. McGomb, 92 U. S. 531, 541. 

^Per Bradley, J., in Board of Liquidation v. MeComb, 92 U. S. 541; 
Davis V. Gray, 16 Wall. 203; McGahey v. Virginia, 135 TJ. S. 662; Hans 
V. Louisiana, 134 id. 1; Pennoyer v. McConnaughy, 140 id. 1; Smyth v. 
Ames, 169 id. 466; Prout v. Starr, 188 id. 537; cf. Fitts v. McGhee, 172 
id. 516 ; I. C. E. v. Adams, 180 id. 28. In Hans v. Louisiana, supra, Bradley, 
J., said, p. 20: "Although the obligations of a state rest for their per- 
formance upon its honour and good faith, and cannot be made the sub- 
jects of judicial cognizance imless the state consents to be sued, or comes 
itself into court; yet where property or rights are enjoyed under a grant or 
contract made by a state, they cannot wantonly be invaded. Whilst the 
state cannot be compelled by suit to perform its contracts, any attempt 
on its part to violate property or rights acquired under its contracts, may 
be judicially resisted; and any law impairing the obligation of contracts 
under which such property or rights are held is void and powerless to affect 
their enjoyment." 



264 THE JUDICIAL POWEE. 

courts of the United States to take cognizance of a cause 
wherein a federal agency, as, for instance, a national bank, 
brings suit against the officers of a state to enjoin the 
enforcement of an unconstitutional law of the state taxing 
that agency.*^*^ It has also been held that state officers 
may be enjoined at the suit of a holder of consolidated 
bonds of the state which had been issued under an agree- 
ment for the funding of the debt of the state, from issuing 
others of the consolidated bonds in violation of the con- 
tract between the state and its bondholders ; ®^ and that an 
action brought by a taxpayer against an officer of a state 
to recover possession of property which that officer has 
wrongfully seized under an unconstitutional law of the 
state for non-payment of taxes is an action against that 
officer as a wrongdoer, and not such an action as is pro- 
hibited by the XI Amendment.^^ 

As the immunity from suit is a personal privilege, the 
state may waive that privilege, and it does waive it, when, 
in a cause pending in a court of the United States, in which 
it has a sufficient interest to entitle it to become a party 
defendant, it causes an appearance to be entered by coun- 
sel on its behalf, for such an appearance is a voluntary 

"" Osborn v. The Bank of the United States, 9 Wheat. 738, 846. 

«' Board of Liquidation v. McComb, 92 U. S. 531. 

•^The Virginia Coupon Cases, 114 U. S. 269, 284. Some of the eases 
were actions of trespass or detinue; others of them were bills in equity for 
an injunction. Bradley, J., with whom concurred Waite, C. J., and Miller 
and Gray, JJ., dissented. Upon a like principle, it has been held that 
officers of the United States being wrongfully in possession of land, the fact 
that they held that possession not for themselves but for the government of 
the United States will not forbid courts to take jurisdiction of the rightful 
owner's action to recover his land, nor prevent judgment in his favour, if 
his title be made out: Meigs -;;. McClung's Lessee, 9 Cr. 11; Wilcox v. Jack- 
son, 13 Pet. 498 ; Grisar v. McDowell, 6 Wall. 363 ; Brown v. Huger, 21 How. 
305; United States v. Lee, 106 U. S. 196. In Mitchell v. Harmony, 13 
How. 115, and in Bates v. Clark, 95 U. S. 204, the same rule was applied 
in actions of trespass against military officers of the United States for 
the wrongful seizure of certain personal property of the plaintiffs, in 
obedience to imlawful orders from a military superior. 



RELATIONS BETWEEN FEDERAX, AND STATE COURTS. 265 

submission to the jurisdiction of the court.*^^ It is obvious 
that the XI Amendment does not affect the jurisdiction 
granted by the III Article to the courts of the United 
States in actions wherein a foreign state, or one of the 
United States, is the plaintiff and one of the United States 
is the def endant.'^*^ 

The relations between the federal and state courts. 

116. The federal supremacy prevents the states from 
regulating the process or practice of the courts of the 
United States at law," or in equity j*^^ or in causes of 
criminal cognizance,'^^ but ' ' the laws of the several states, 
except when the Constitution, treaties, or statutes of the 
United States otherwise require or provide, shall be re- 
garded as rules of decision in trials at common law^ in 
the courts of the United States in cases where they 
apply. ' ' ^* The federal supremacy also forbids the courts 
of the states to refuse obedience to a mandate of the Su- 
preme Court of the United States, reversing a judgment 
of a state court in a cause which is of federal cog- 
nizance ; "^^ and it prevents a state legislature from 
annulling by statute the judgment of a court of the United 
States in a cause which is within the jurisdiction of the 

«« Clark V. Barnard, 108 U. S. 436. 

"> U. S. V. Texas, 143 U. S. 621. 

^^Wayman v. Southard, 10 Wheat. 1; Bank of U. S. v. Halstead, ibid. 
51 ; Lincoln v. Power, 151 U. S. 436. 

"Borer v. Chapman, 119 U. S. 587; Mississippi Mills v. Cohn, 150 id. 
202; Hollins v. B. C. & L Co., iUd. 371. 

'^U. S. V. Eeid, 12 How. 361. 

^*Act of 24th September, 1789, c. 20, sec. 34, 1 Stat. 92; Eev. Stat. sec. 
721. See Field's Federal Courts, p. 430. The general principle that the 
lex fori governs the limitation of actions applies to actions brought 
originally in the eoui'ts of the United States, and also to actions removed 
thereto from the courts of the states: Arnson v. Murphy, 109 U. S. 238; 
Mitchell V. Clark, 110 id. 633. 

" Martin v. Hunter 's Lessee, 1 Wheat. 304. 



266 THE JUDICIAL POWER. 

courtJ^ Wliile a state cannot confer jurisdiction on a 
court of the United States, yet a state may by its legisla- 
tion create legal and equitable rights which can be en- 
forced in a court of the United States in a cause whereof 
that court has acquired jurisdiction by reason of either 
the citizenship of the parties or the federal character of 
the subject-matter of litigation; thus, pilotage being a 
subject of admiralty and, therefore, of federal jurisdic- 
tion, a pilot may sue in a court of the United States to 
recover pilotage under a state statute ; ^^ and the right 
under a state statute to recover damages for a death 
caused by negligence is enforcible in a cause between 
proper parties in a court of the United States ; '^^ and liens 
created by state laws in favour of material men for sup- 
plies furnished to vessels in their home ports or for ma- 
terials furnished to ships in process of construction may 
be enforced in the courts of the United States J^ 

A court of the United States cannot enjoin proceedings 
in a court of a state,^^ save in aid of bankruptcy proceed- 
ings pending in a court of the United States, or as a 
means of preventing the enforcement in a court of a state 

'"V. S. V. Peters, 5 Cr. 115. 

'' Hobart v. Drogan, 10 Pet. 108 ; Ex parte McNiel, 13 Wall. 236. 

" Ey. Co. V. Whitton, 13 WaU. 270. 

'^Edwards v. Elliott, 21 Wall. 532; The Lottawanna, ibid. 558; TJ. S. 
V. P.-D. M. Co., 176 U. S. 317; cf. The Eoanoke, 189 id. 185. Where 
the jurisdiction of a court of the United States has attached, a party to 
the suit who refuses or neglects to obey its process will be liable in damages 
to any party injured by such neglect or refusal: Amy v. Supervisors, 11 
Wall. 136 ; and a trustee of property to which the jurisdiction of a court 
of the United States has attached will be held personally responsible if, 
without adequate resistance, he surrenders such property to the process of 
a court of a state: Chittenden v. Brewster, 2 Wall. 191. See also In re 
Watts and Sachs, 190 U. S. 1. 

^"Diggs V. Wolcott, 4 Cr. 179; Watson v. Jones, 13 Wall. 679; Haines v. 
Carpenter, 91 U. S. 254; Dial v. Eeynolds, 96 id. 340; Leroux v. Hudson, 
109 id. 468; Byers v. McAuley, 149 id. 608; Harkrader v. Wadley, 172 id. 
148; cf. In re Neagle, 135 id. 1; Cole v. Cunningham, 133 id. 107. See 
also In re Watts and Sachs, 190 id. 1. 



EELATIONS BETWEEN FEDEEAL, AND STATE COUETS. 267 

of a judgment entered therein after a cause has been 
properly removed to a court of the United States ; ^^ nor 
can the courts of the United States issue writs of man- 
damus to courts of the states, except to compel the per- 
formance of purely ministerial,*^ and not judicial,*^ duties. 

Chattels taken in execution under the judgment of a 
court of a state and delivered to a claimant upon his giving 
bond therefor cannot be seized by a marshal under the 
process of a court of the United States.** A court of the 
United States exercising jurisdiction in bankruptcy cannot 
divest liens upon the bankrupt's property created by the 
judgments, either interlocutory or final, of the courts of 
the states ; *^ the assets of the estate of an insolvent dece- 
dent in process of judicial administration under the order 
of a probate court of a state are not subject to levy under 
an execution issued by a court of the United States ; *^ 
and the trustee appointed by a court of a state under a 
state statute to liquidate a corporation whose charter has 
been forfeited cannot be sued in a court of the United 
States by creditors of the corporation to compel his allow- 
ance of a claim against the corporation.*^ 

As Catron, J., said in the judgment in the case of The 
Bank of Alabama v. Dalton,** ''In administering justice 
. . . the states of this Union act independently of each 
other, and their courts are governed by the laws and 
municipal regulations of that state, where a remedy is 

»i French v. Hay, 22 Wall. 250 ; Dietzsch v. Huidekoper, 103 U. S. 494. 

'" Biggs V. Johnson County, 6 Wall. 166 ; Amy v. Supervisors, 11 id. 136 ; 
Supervisors v. U. S., 154 U. S. 576. 

^Un re Blake, 175 U. S. 114. See also The Mayor v. Lord, 9 Wall. 409 j 
The Supervisors v. Durant, ibid. 415; Bath County v. Amy, 13 id. 244. 

^* Hagan v. Lucas, 10 Pet. 400. 

"^ Peck V. Jenness, 7 How. 612. 

*" Williams v. Benedict, 8 How. 107. 

*^ Peale v. Phipps, 14 How. 368. See also Vaughan v. Northup, 15 Pet. 
1; Wiswall v. Sampson, 14 How. 52; cf. Erwin v. Lowry, 7 How. 172. 

*' 9 How. 522, 527. 
18 



268 THE JUDICIAL POWEK. 

sought, unless they are controlled by the Constitution of 
the United States, or by laws enacted under its authority. ' ' 
The most important of the restraints imposed by the Con- 
stitution upon the exercise of judicial jurisdiction by the 
states result from the grant in Article III of the Constitu- 
tion, of judicial power to the United States over certain 
subjects of jurisdiction, and from the power of Congress 
to render that jurisdiction exclusive. Nevertheless, as 
the Constitution, laws, and treaties of the United States 
are ^'the supreme law of the land," the states, wherever 
Congress has not, by legislation within the limits of its 
constitutional powers, excepted any subject from the juris- 
diction of their courts, may exercise jurisdiction therein, 
and, in such cases, rights arising under the Constitution, 
laws, and treaties of the United States may be adminis- 
tered, subject, of course, to the appellate jurisdiction of 
the Supreme Court of the United States, and to the power 
of removal to the federal courts of the first instance; 
thus, a tribunal constituted by a state may enforce the 
militia laws of the United States ; ^^ and an assignee in 
bankruptcy may sue in a court of a state to recover the 
assets of the bankrupt.®*^ But where Congress has ex- 
pressed its will that the courts of the United States shall 
exercise exclusive jurisdiction over any subject-matter 
which is included within the constitutional grant of 
judicial power to the United States, the courts of the states 
cannot directly exercise judicial jurisdiction over such 
subject-matter. Upon this principle, a court of a state 
cannot take cognizance of an act declared to be criminal 
by the statutes of the United States, unless that act be 

*" Houston V. Moore, 5 Wheat. 1. 

^''Claflin V. Houseman, 93 U. S. 130; Teal v. Felton, 12 How. 284, re- 
ferred to by Bradley, J., 93 U. S. 142, was an action of trover for a news- 
paper which a postmaster wrongfully refused to deliver. See also Eyster 
V. Gaff, 91 U. S. 521; Ex parte Christy, 3 How. 292, 318, 319; Nugent v. 
Boyd, Hid. 426 ; Williams ■;;. Heard, 140 U. S. 529. 



EELATIONS BETWEEN FEDEEAL AND STATE COURTS. 269 

also an offense against the laws of the state.®^ A state 
court cannot take jurisdiction of a cause of admiralty 
cognizance,^^ such as a proceeding in rem founded upon a 
contract for the transportation of passengers by sea, or 
upon a collision,^^ or upon a contract of affreightment,^* 
but a state court may take jurisdiction of an action in 
personam for mariners' wages,*'^ or of a proceding in rem 
founded upon a lien given by a state statute for materials 
supplied in building a ship,^^ for such actions are not 
necessarily of admiralty cognizance. A state court can- 
not take jurisdiction of an action at law against a foreign 
consul.^" A state court cannot take jurisdiction in patent 
causes, nor determine the validity of a patent, or a ques- 
tion of infringement,^* but a state court may incidentally 
pass upon the validity of a patent, as, for instance, where 

*^ There is a concurrent jurisdiction over crimes, when the criminal act 
is an offense against the laws of both the United States and of the states; 
thus, a state may punish the offense of uttering or passing false coin as a 
fraud practiced on its citizens: Fox v. Ohio, 5 How. 432, and the United 
States may punish the same act as a crime against it: United States v. 
Marigold, 9 How. 560. In the same way, a state might have, before the 
adoption of the XIII Amendment, punished the harbouring of a fugitive 
slave: Moore v. Illinois, 14 How. 13, while the same act could have been 
punished in the courts of the United States as an offense against the 
fugitive slave legislation of Congress. So also a state may punish the 
forging of a promissory note, although the forger commits the further 
crime of making false entries concerning such notes on the books of a 
national bank: Cross v. North Carolina, 132 U. S. 131. And a state may 
punish the murder of a locomotive engineer, although his death be caused 
by the derailment of a train carrying the mails of the United States: 
Crossley v. California, 168 U. S. 640. But it may not punish an officer 
of a national bank who, knowing that the bank is insolvent, nevertheless 
receives a deposit: Easton v. Iowa, 188 U. S. 220. 

'- The Moses Taylor, 4 Wall. 411; Moran v. Sturges, 154 U. S. 256. 

"= The Hine v. Trevor, 4 Wall, 555. 

^ The Belfast, 7 Wall. 624. 

^ Leon V. Galceran, 11 Wall. 185. 

"" Edwards v. Elliott, 21 Wall. 532. 

*' Davis V. Packard, 7 Pet. 276. 

°* Eev. Stat., sec. 711. Per Bradley, J., in Claflin v. Houseman, 93 
U. S. 140. 



270 THE JUDICIAL POWER. 

it is questioned in an action for the price of the patent.^^ 
The distinction running through the cases is, that, where 
Congress has excepted from the action of the courts of the 
states any subject-matter of federal jurisdiction as desig- 
nated in the Constitution, the courts of the states thence- 
forth cannot directly, but may indirectly and collaterally, 
act upon such subject-matter. The courts of the states 
cannot issue an injunction before final decree, nor an 
attachment on mesne process, against a national bank.^^^ 
The federal supremacy forbids a court of a state to issue a 
mandamus to an officer of the United States,^ or to try a 
federal officer for an act done by him in the discharge of 
his official duties,^ or, b}^ its process, to take in execution 
goods imported into a port of the United States, but not 
yet entered at the custom-house for payment of duties 
to the United States,^ or goods, which, having been seized 
for violation of the revenue laws of the United States, are 
in the custody of a marshal of the United States.* Nor 
can a court of a state take jurisdiction of a suit to de- 
termine whether or not property has been rightfully 
forfeited under the laws of the United States.^ Nor can 
it take jurisdiction of a complaint for perjury in testifying 
before a local notary public upon a contested con- 
gressional election.*^ Nor can a court of a state by injunc- 
tion restrain the execution of a judgment of a court of 
the United States ; "^ nor, under a state insolvent law, 

*°See the judgment of Gray, J., in Nash v. Lull, 102 Mass. 60; cf. Marsh 
V. N., S. & Co., 140 U. S. 344; Holt v. 1. Mfg. Co., 176 id. 68. 
^<«' Eev. Stat. 5242 ; Pacific Nat. Bank v. Mixter, 124 U. S. 721. 

^McClung V. Silliman, 6 Wheat. 598. 

^In re Neagle, 135 U. S. 1; Etheridge v. Sperry, 139 id. 266; Ohio v. 
Thomas, 173 id. 276; Boske v. Comingore, 177 id. 459. See also Gableman 
V. P., D. & E. Ey., 179 id. 335. 

^ Harris v. Dennie, 3 Pet. 292. 

* Slocum V. Mayberry, 2 Wheat. 1. 

= Gelston v. Hoyt, 3 Wheat. 246. 

« In re Loney. 134 U. S. 372. 

^ McKim V. Voorhies, 7 Cr. 279. 



RELATIONS BETWEEN" FEDEEAL AND STATE COURTS. 271 

regulate the distribution of assets of an insolvent national 
bank ; ^ nor discharge a defendant held in custody under a 
capias ad satisfaciendum issued by a court of the United 
States ; ^ nor replevy property taken in execution under 
a judgment of a court of the United States ; ^^ nor order 
the release, after a hearing on habeas corpus, of a prisoner 
held in custody by an officer of the United States under a 
warrant of commitment from a commissioner of a circuit 
court of the United States upon a charge of the commis- 
sion of an offense against the laws of the United States, 
or of a prisoner held in custody by the United States after 
a trial and conviction in a court of the United States of 
an offense against the laws of the United States; ^^ nor 
release upon habeas corpus an enlisted soldier in the 
army of the United States, detained in custody under 
the order of his commanding officer.^ ^ Nor can an at- 
tachment of a debt by the process of a state court, after 
the commencement of a suit upon that debt in a court 
of the United States bar the plaintiff's recovery in that 
suit ; ^^ nor can the pendency of state insolvent proceed- 
ings be set up as a bar to suits in the courts of the United 
States brought by parties who are constitutionally entitled 
to sue therein.^* 

* Davis V. Elmira Savings Bank, 161 U. S. 275 ; cf. Earle v. Conway, 
178 id. 456. 

* Duncan v. Darst, 1 How. 301. 

1" Freeman v. Howe, 24 How. 450; Covell v. Heyman, 111 TJ. S. 176. 

" Ableman v. Booth, 21 How. 506. 

" Tarble 's Case, 13 Wall. 397. A state court may, nevertheless, by pro- 
cess of habeas corpus, inquire into the legality of the detention of a 
person, who, having been arrested as a fugitive from the justice of another 
state, is detained in custody by an agent of that other state under a 
warrant issued by the governor of the state within whose territory the 
alleged fugitive has come: Kobb v. Connolly, 111 U. S. 624. 

" Wallace v. McConnell, 13 Pet. 136. 

"Suydam v. Broadnax, 14 Pet. 67; Hyde v. Stone, 20 How. 170; Green 
V. Creighton, 23 id. 90. 



272 THE JUDICIAL POWER. 

In the cases of persons wlio, or of property wMch, may 
be subject to the jurisdiction of the courts of the United 
States, and also to that of the courts of the states, that 
jurisdiction, which first actually attaches either to the 
person or the property, will retain control and cannot be 
divested by process issued from the other jurisdiction.^^ 
An officer who, in executing the process issued by a court 
in a cause within its jurisdiction, seizes property which 
that process specifically designates, is not liable to action 
therefor in a court of another jurisdiction; but an officer 
who, under a judgment in personam, seizes property not 
specifically designated in the process is liable, and may 

^'^ Sloeum V. MJayberry, 2 Wheat. 1 ; Smith v. Mclver, 9 id. 532 ; Hagan v. 
Lucas, 10 Pet. 400; Wallace v. McConnell, 13 id. 136; Erwin v. Lowry, 
7 How. 172; Peck v. Jenness, ibid. 612; Williams v. Benedict, 8 id. 107; 
Wiswall V. Sampson, 14 id. 52 ; Peale v. Phipps, ibid. 368 ; Pulliam v. 
Osborne, 17 id. 471; Taylor v. Carryl, 20 id. 583; Freeman v. Howe, 24 id. 
450^ Oovell V. Heyman, 111 U. S. 176; Heidritter v. Elizabeth Oil-cloth 
Co., 112 id. 294; Cross v. North Carolina, 132 id. 131; E. G. E. v. 
Gomila, ibid. 478; L. C. Co. v. McCreery, 141 id. 475; In re Tyler, 149 
id. 164; Byers v. McAuley, ibid. 608; Central Nat. Bank v. Stevens, 169 id. 
432; Harkrader v. Wadley, 172 id. 148; White v. Schloerb, 178 id. 542; 
cf. Etheridge v. Sperry, 139 id. 266; Bock v. Perkins, ibid. 628; Moran 
V. Sturges, 154 id. 256; Earle v. Pennsylvania, 178 id. 449; Earle v. Con- 
way, ibid. 456. In Covell v. Heyman, 111 IT. S. 182, Matthews, J., said: 
' ' The forbearance which courts of co-ordinate jurisdiction, administered 
under a single system, exercise toward each other, whereby conflicts are 
avoided, by avoiding interference with the process of each other, is a 
principle of comity, with, perhaps, no higher sanction than the utility which 
comes from concord; but between state courts and those of the United 
States it is something more. It is a principle of right and of law, and, 
therefore, of necessity. It leaves nothing to discretion or mere conveni- 
ence. These courts do not belong to the same system, so far as their 
jurisdiction is concurrent; and although they co-exist in the same space, 
they are independent, and have no common superior. They exercise juris- 
diction, it is true, within the same territory, but not in the same plane; and 
when one takes into its jurisdiction a specific thing, that res is as much 
withdrawn from the judicial power of the other as if it had been carried 
physically into a different territorial sovereignty. To attempt to seize it 
by a foreign process is futile and void. The regulation of process, and the 
decision of questions relating to it, are part of the jurisdiction of the 
court from which it issues." 



XrV AMENDMENT — STATE JUDICIAL PROCEEDINGS. 273 

be sued therefor in a court of another jurisdiction,^^ and 
the party injured by such a wrongful act by a marshal of 
the United States may sue on the marshal's official 
bond; ^'^ or, he may file a bill in the federal court to re- 
strain or regulate its judgment.^^ 

The XIV Amendment as affecting state judicial pro- 
ceedings. 

117. The exercise of judicial jurisdiction by the states 
is also restricted by that provision of the XIV Amend- 
ment which declares, ^'Nor shall any state deprive any 
person of life, liberty, or property without due process 
of law." Within the meaning of the Constitution, this 
due process of law is secured when the laws operate on 
all alike and no one is subjected to an arbitrary exercise 
of the powers of governments^ The provision ''does not 
control mere forms of procedure in the state courts or 
regulate practice therein. All its requirements are com- 
plied with provided in the proceedings which are claimed 
not to have been due process of law the person con- 
demned has had sufficient notice and adequate opportunity 
has been afforded him to defend. " ^^^ In proceedings in 
personam service must be made within the state unless 
the defendant voluntarily appears ; ^^ in proceedings in 

" Slocum V. Mayberry, 2 Wheat. 1 ; Day v. Gallup, 2 Wall. 97 ; Buck v. 
Colbath, 3 id. 334. 

" Lammon v. Feusier, 111 U. S. 17. 

^^ Krippendorf v. Hyde, 110 U. S. 276. 

" Caldwell v. Texas, 137 U. S. 692 ; Leeper v. Texas, 139 id. 462 ; Giozza 
V. Tiernan, 148 id. 657; I. C. Ey. v. Iowa, 160 id. 389; Tonawanda v. 
Lyon, 181 id. 389 ; Detroit v. Parker, iMd. 399. 

20 L. & N. B. V. Schmidt, 177 TJ. S. 230; see also In re Kemmler, 136 id. 
436; cf. Simon v. Craft, 182 id. 427. 

-^ Boswell 's Lessee v. Otis, 9 How. 336 ; Harris v. Hardeman, 14 id. 334 ; 
Nations v. Johnson, 24 id. 195; York v. Texas, 137 U. S. 15; Kauffman v. 
Wooters, 138 id. 285; Dewey v. Des Moines, 173 id. 193; Eoller v. HoUy, 
176 id. 398; cf. Gallup v. Schmidt, 183 id. 300. 



274 THE JUDICIAL POWEE. 

rem the res must be within the jurisdiction and construc- 
tive notice of the proceedings must be given.^^ A state 
may regulate its judicial proceedings,^^ provided that it 
does not discriminate against classes of citizens. A state 
may therefore restrain or take away the right of trial by 
jury in civil cases ; ^^ or it may permit the prosecution of 
crimes by information after examination and commitment 
by a magistrate ; ^^ or it may provide for the trial of 
criminal cases by a struck jury,^^ or by a jury composed of 
eight instead of twelve jurors ; ^" or it may permit a person 
charged with murder to waive the right of trial by jury ; ^^ 
or it may permit a court to enjoin the commission of a 
crime and then punish its commission by contempt pro- 
ceedings without the intervention of a jury ; ^^ or it may 
even provide that any person may summarily destroy, 
without judicial proceedings, fishing nets that have been 
placed in public streams in defiance of statute.^^ 

A state may freely prescribe the jurisdiction of its 

" Arndt v. Griggs, 134 U. S. 316 ; see also Hanover Nat. Bank v. Moyses, 
186 id. 181; cf. Eo Bards v. Lamb, 127 id. 58. But a court may not, by 
any proceedings, grant administration of the estate of a living person : Scott 
V. McNeal, 154 U. S. 34. 

=^ Duncan v. Missouri, 152 U. S. 377; Holden v. Hardy, 169 id. 366 
Backus V. F. S. U. D. Co., ibid. 557; Brown v. New Jersey, 175 id. 172 
L. & N. E. V. Schmidt, 177 id. 230; Freeland v. Williams, 131 id. 405 
L. & N. E. V. Woodson, 134 id. 614; Natal v. Louisiana, 139 id. 621 
Andrews v. Swartz, 156 id. 272; Lowe v. Kansas, 163 id. 81; Jones 
V. Brim, 165 id. 180; Nobles v. Georgia, 168 id. 398. See also Minder v. 
Georgia, 183 id. 559. 

^Walker v. Sauvinet, 92 U. S. 90; Church v. Kelsey, 121 id. 282; cf. 
I. C. Ey. V. Iowa, 160 id. 389. 

^Hurtado v. California, 110 U. S. 517; McNulty v. California, 149 id. 
645; Hodgson v. Vermont, 168 id. 262; BoUn v. Nebraska, 176 id. 83; 
Maxwell v. Dow, ibid. 581; Davis v. Burke, 179 id. 399. 

=« Brown v. New Jersey, 175 U. S. 172. 

" Maxwell v. Dow, 176 U. S. 581. 

^^Hallinger v. Davis, 146 U. S. 314. 

'" Eilenbecker v. Plymouth County, 134 U. S. 31 ; ef. In re Debs, 158 id. 
564; Tinsley v. Anderson, 171 id. 101. 

*»Lawtr>n v. Steele, 152 U. S. 133.' 



XVI AMENDMENT — STATE JUDICIAL PKOCEEDINGS. 275 

several courts, both as to their territorial limits and the 
subject-raatter, amount and finality of their respective 
judgments and decrees, and it may vest in one court final 
appellate jurisdiction over the courts of certain counties, 
and in another court the like jurisdiction over other 
counties.^^ It may, in providing for local prohibition of 
retail liquor selling, leave the word "retail" to judicial 
definition, and the amount of the penalty to judicial dis- 
cretion.^^ A statute of a state which, as construed by its 
courts, provides that a person called as a juror in the trial 
of a criminal cause is not to be disqualified because he has 
formed an opinion or impression based upon rumor or 
newspaper statements, if he shall upon oath state that his 
verdict will be based only on the evidence at the trial, does 
not deprive the prisoner tried by such jurors of his life, 
liberty, or property without due process of law.^^ And in 
a criminal trial, upon proof of non-residence, permanent 
absence, and inability to procure the attendance of a wit- 
ness, the state may put in evidence the deposition of such 
witness, taken upon the preliminary examination before a 
committing magistrate when defendants were present and 
their counsel was afforded opportunity to cross-examine.^* 
The Amendment does not interfere with a state's regula- 
tion of the remedies afforded to creditors of its municipali- 
ties for the collection of their debts.^^ But due process of 
law is denied by a statutory requirement that a master's 
deed be taken out by the purchaser at a foreclosure sale 
within a specified time, where failure to comply with such 
requirement is held by the highest state court to destroy 

^^ Missouri v. Lewis, 101 U. S. 22 ; Duncan v. Missouri, 152 id. 377 ; Moore 
V. Missouri, 159 id. 673. 

'- Ohio V. DoUison, 194 U. S. 445. 

^ Spies V. Illinois, 123 U. S. 131. 

^* West V. Louisiana, 194 U. S. 258. 

^ Commissioners of Tippecanoe v. Lucas, 93 U. S. 108 ; Louisiana v. 
New Orleans, 109 id. 285. 



276 THE JUDICIAL POWEE. 

the rights of the mortgagee in possession after condition 
broken, and to entitle the mortgagor, without payment of 
his debt, to recover possession in ejectment.^*' 

The Amendment being directed against state legislation 
and not against a judicial misconstruction of such legisla- 
tion by the courts of the state, when a state legislature has 
enacted laws for the government of its courts, which, if 
followed, will furnish all parties with the needed protec- 
tion to life, liberty, and property, it has performed its 
constitutional duty, and if one of its courts, acting within 
its jurisdiction, make an erroneoils decision, the state 
cannot be deemed guilty of violating the Amendment; 
thus, where a state statute required of all guardians the 
giving a bond before selling their wards* real estate, 
the fact that a court permitted a sale to be made without 
requiring the giving of such a bond is not a violation of the 
Amendment ;^^ nor is due process of law denied where 
the court permits an irregularity in the polling of the 
jury in a criminal trial, the irregularity working no injury 
to the defendant ; ^^ nor is due process of law denied 
where the court refuses a jury trial in civil proceedings, 
even though such mode of trial be required by statute ; ^^ 
nor do mere errors in the administration of a statute 
afford constitutional grounds for the reversal of a judg- 
ment.*^ On the same principle, the constitutional require- 
ment is not violated when an accused person is tried and 
sentenced to imprisonment by a judge de facto of a court 
de jure.^^ 

^"^ Bradley v. Lightcap, 195 U. S. 1. 

^^ Arrowsmith v. Harmoning, 118 U. S. 194. 

"'Cross V. North Carolina, 132 U. S. 131. 

^^ I. C. Ey. V. Iowa, 160 U. S. 389. 

*°Lent V. Tillson, 140 U. S. 316; B. T. Co. v. B. B. E., 151 id. 137. See 
also Marrow v. Brinkley, 129 id. 178; In re Converse, 137 id. 624; C. L. Co. 
V. Laidley, 159 id. 103; Hooker v. Los Angeles, 188 id. 314; Arbuekle v. 
Blackbm-n, 191 id. 405. 

" In re Manning, 139 U. S. 504. 



XVI AMENDMENT — STATE JUDICIAL PROCEEDINGS. 277 

But the phrase *^due process of law" does not neces- 
sarily mean a judicial proceeding. The nation from 
whom we inherit that phrase has never relied upon the 
courts of justice for the collection of her taxes, though 
she passed through a successful revolution in resistance 
to unlawful taxation.^^ Due process of law is secured in 
the procedure for the collection of assessments and taxes,^^ 
and in the exercise of the right of eminent domain,"*^ if 
provision be made for a mode of confirming and contest- 
ing the charge thus imposed, with such notice to the per- 
son, or such proceedings in regard to the property, as is 
appropriate to the nature of the case.^^ It has also been 

« Palmer v. McMahon, 133 U. S. 660. 

*^MeMillen v. Anderson, 95 U. S, 37; Davidson v. New Orleans, 96 id. 
97; Kelly v. Pittsburgh, 104 id. 78; Hagar v. Keclamation District, 111 
id. 701; Head v. A. Mfg. Co., 113 id. 9; Wurts v. Hoagland, 114 id. 606; 
Kentucky E. Tax Cases, 115 id. 321; Spencer v. Merchant, 125 id. 345; 
Walston V. Nevin, 128 id. 578; Lent v. Tillson, 140 id. 316; Paulsen v. 
Portland, 149 id. 30; P., C, C. & St. L. Ey. v. Backus, 154 id. 421; W. & 
St. P. L. Co. V. Minnesota, 159 id. 526; Fallbrook Irr. Dist. v. Bradley, 
164 id. 112; M. & M. Bank v. Pennsylvania, 167 id. 461; King v. MuUins, 
171 id. 404; B. B. & B. C. E. v. New Whatcom, 172 id. 314; Weyer- 
haueser v. Minnesota, 176 id. 550; French v. B. A. P. Co., 181 id. 324; 
Detroit v. Parker, ihid. 399; Gallup v. Schmidt, 183 id. 300; King v. Port- 
land, 184 id. 61; Voigt v. Detroit, ibid. 115; Goodrich v. Detroit, ibid. 
432; Tui-pin v. Lemon, 187 id. 51; Glidden v. Harrington, 189 id. 255; 
Hibben v. Smith, 191 id. 310; Leigh v. Green, 193 id. 79; cf. Carson v. 
Brockton Sewerage Com., 182 id. 398; League v. Texas, 184 id. 156. And 
a state may provide that a proposed improvement shall not be made if 
a protest is filed by a majority of resident owners of property liable to 
assessment therefor, although no such privilege of protest is afforded non- 
resident owners, where there is no discrimination in assessing for the im- 
provement: Field V. B. A. P. Co., 194 U. S. 618. 

"Pearson v. Yewdall, 95 U. S. 294; Huling v. K. V. Ey. & Imp. Co., 
130 id. 559; K. W. P. Co. v. G. B. & M. C. Co., 142 id. 254; L. L W. S. Co. v. 
Brooklyn, 166 id. 685; Backus v. F. S. U. D. Co., 169 id. 557; Hooker v. 
Los Angeles, 188 id. 314. 

^ It may not tax a franchise granted by another state : L. & J. F. Co. 
V. Kentucky, 188 U. S. 385. The bare observance of legal forms is in- 
sufficient where the proeedings are manifestly fraudulent: C, B. & Q. E. 
V. Chicago, 166 U. S. 226; cf. Fallbrook Irr. Dist. v. Bradley, 164 id. 112, 
168. And compensation must be made or secured when private property 
is taken for public use: L. I. W. S. Co. v. Brooklyn, 166 id. 685; Norwood 



278 THE JUDICIAL POWEE. 

held that a state may by statute prohibit the manufacture 
of liquors ; ^^ and it may prohibit their sale in saloons to 
women ; *^ it may regulate the hours of labour of persons 
employed in hazardous occupations ; *^ it may prohibit the 
waste of natural gas and oil ; ^^ it may fix a reasonable 
limit upon the rates which may charged by railway ,^*^ 
grain elevator,^^ and water supply^^ companies; it may 
impose special liabilities upon railroad companies ; ^^ it 
may require practitioners of medicine to undergo ex- 
aminations as to their attainments ; ^^ it may reduce the 
rate of interest upon judgments previously obtained in its 
courts,^^ it may provide that an insurer cannot, in an 
action upon a policy of insurance, deny that the value of 

V. Baker, 172 id. 269; cf. K. W. P. Co. v. G. B. & M. C. Co., 142 id. 254; Eld- 
ridge V. Trezevant, 160 id. 452; H. Bridge Co. v. Henderson City, 173 id. 
592; A. Ey. v. New York, 176 id. 335; O. O. Co. v. Indiana, 177 id. 190; 
Williams v. Parker, 188 id. 491. The XIV Amendment, unlike the V 
Amendment, does not contain an express provision that just compensation 
shall be rendered. 

^«Mugler V. Kansas, 123 U. S. 623; Kidd v. Pearson, 128 id. 1. 

*^ Cronin v. Adams, 1 92 U. S. 108. 

** Ilolden V. Hardy, 169 U. S. 366. And it may limit the hours of labour 
on work thereafter contracted for by its municipalities : Atkin v. Kansas, 191 
U. S. 207. 

" O. O. Co. V. Indiana, 177 U. S. 190. 

^"Dow V. Beidelman, 125 U. S. 680; N., C. & St. L. Ey. v. Alabama, 128 
id. 96; C. & G. T. Ey. v. Wellman, 143 id. 339; St. L. & S. F. Ey. v. 
Gill, 156 id. 649; C, M. & St. P. Ey. v. Tompkins, 176 id. 167; cf. C, M. 
& St. P. Ey. V. Minnesota, 134 id. 418; M. E. Ey. v. Minnesota, ibid. 467; 
Smyth V. Ames, 169 id. 466; L. S. & M. S. Ey. v. Smith, 173 id. 684. 

"Munn V. Illinois, 94 U. S. 113; Budd v. New York, 143 id. 517; Brass 
V. North Dakota, 153 id. 391. 

°' S. D. L. & T. Co. V. National City, 174 U. S. 739 ; K. W. Co. v. KnoxviUe, 
189 id. 434; S. D. L. & T. Co. v. Jasper, ibid. 439; Stanislaus County v. 
S. J. & K. E. C. & I. Co., 192 id. 201. See also Cotting v. K. C. S. Y. 
Co., 183 id. 79. 

=^ M. P. Ey. V. Mackey, 127 U. S. 205 ; M. & St. L. Ey. v. Herrick, ibid. 
210 ; St. L. & S. F. Ey. v. Mathews, 165 id. 1 ; cf. M. & St. L. Ey. v. Beck- 
with, 129 id. 26 ; C, C. & A. E. v. Gibbes, 142 id. 386 ; New York v. Squire, 
145 id. 175 ; M. P. Ey. v. Nebraska, 164 id. 403 ; G., C. & S. F. Ey. v. Ellis, 
165 id. 150. See also C, E. I. & P. Ey. v. Zernecke, 183 id. 582. 

=^Dent V. West Virginia, 129 U. S. 114; Eeetz v. Michigan, 188 id. 505. 

^° Morley v. L. S. & M. S. Ey., 146 U. S. 162. 



XVI AMENDMENT — STATE JUDICIAL PEOCEEDINGS. 279 

the goods destroyed was that set forth in the insurance 
papers ; ^^ it may require the redemption in cash of store 
orders issued by employers in payment of wages due to 
employees ; ^^ it may prohibit the manufacture and sale of 
oleomargarine containing colouring matter ; ^^ it may 
prohibit its railway companies from charging greater 
rates for shorter than for longer hauls, except by permis- 
sion of the railroad commission ; ^^ it may require rail- 
ways to erect and maintain stations on orders of the rail- 
road commission which are not shown to be unreason- 
able ; ^" it may forbid the selling of options for the pur- 
chase or sale of commodities ; ^^ and it may forbid the 
maintenance of a cow stable within municipal limits with- 
out permission from the municipal assembly.*^^ It has also 
been held that a state may by statute make water rates a 
lien on land prior to the lien of a mortgage of date subse- 
quent to the statute ; ^^ it may validate a legally defective 
mortgage ; ^^ it may require a purchaser of land under a 
sale for non-payment of taxes to bring his possessory ac- 
tion within five years after the sale ; ^^ it may shorten the 
period of limitation of actions, provided it allows a rea- 
sonable time for the bringing of actions after the passage 
of the statute and before the bar takes effect ; ^^ and it 
may, without depriving a debtor of his property, repeal 
a statute of limitations after the debt is thereby barred.®'^ 

'' O. I. Co. V. Dagg3, 172 U. S. 557. 
" K. I. Co. V. Harbison, 183 U. S. 13. 
=*^ C. C. D. Co. V. Ohio, 183 U. S. 238. 
'"> L. & N. E. V. Kentucky, 183 U. S. 503. 
^''M. & St. L. E. V. Minnesota, 193 U. S. 53. 
"^ Booth V. Illinois, 184 U. S. 425. 
"- Fischer v. St. Louis, 194 U. S. 361. 

*^ Provident Inst, for Savings v. Jersey City, 113 U. S. 506. 
•^ Gross V. V. S. Mtge. Co., 108 U. S. 477. 
"' Barrett v. Holmes, 102 U. S. 651. 

"« Wheeler v. Jackson, 137 U. S. 245; Turner v. New York, 168 id. 90; 
S. L. & T. Co. V. Comptroller of New York, 177 id. 318. 
«' CampbeU v. Holt, 115 U. S. 620. 



280 THE JUDICIAXi POWER. 

So also a state may tax remainders created by will before 
the precedent estates terminate and the remainders vest 
in possession.*^^ So also a state may provide for the in- 
spection of mines, establish a fee for the same, and allow 
the inspectors to determine the number of inspections per 
year required by each mine ; ^^ the date of the execution of 
a murderer may be fixed by the court in the absence of the 
convict, '^'^ or it may be fixed by the governor ; "^^ if per- 
mitted by statute, the governor may remove a subordinate 
official from office ; '^- and a mayor may, by municipal 
ordinance, be given the power to grant or refuse permis- 
sion to move buildings upon the public streets of the city.'^^ 
On the same principle, the trial of contested elections may 
be committed by the state constitution to the legislature 
of the state and the provision of the XIV Amendment that 
no person shall be deprived of his propery without due 
process of law is not thereby violated."^* 

The "full faith and credit" clause. 

118. The judicial action of the states is also restrained 
by Section 1 of Article IV of the Constitution, which de- 

"^Orr V. Gilman, 183 U. S. 278. 

"^ St. L. C. C. Co. V. Illinois, 185 U. S. 203. 

™ Fielden v. Illinois, 143 U. S. 452. 

'^ Holden v. Minnesota, 137 U. S. 483. On the power of executive 
oi3ficers to decide upon a term of imprisonment, see Dreyer v. Illinois, 187 
U. S. 71. 

'-Wilson V. North Carolina, 169 U. S. 586. 

" Wilson V. Eureka City, 173 U. S. 32. 

'* Taylor and Marshall v. Beckham, 178 U. S. 548. For decisions as to 
"liberty," see AUgeyer v. Louisiana, 165 id. 578; Davis v. Massachusetts, 
167 id. 43; and also G. S. F. H. Co. v. Jones, 193 id. 532; as to ''property," 
see Pennie v. Eeis, 132 id. 464; Eldridge v. Trezevant, 160 id. 452; 
Plessy V. Ferguson, 163 id. 537; M. P. Ey. v. Nebraska, 164 id. 403; 
Sentell v. N. O. & C. E., 166 id. 698; W. E. v. Defiance, 167 id. 88. On 
' ' due process of law ' ' under the V Amendment, see See. 112, supra. The 
XIV Amendment is directed against the states and, therefore, does not 
protect individuals against actions by officials in violation of state laws: 
Barney v. City of New York, 193 U. S. 430. 



THE ''full faith AND CREDIT" CLAUSE. 281 

Clares that, ''full faith and credit shall be given in each 
state to the public acts, records, and judicial proceedings 
of every other state. And the Congress may by general 
laws prescribe the manner in which such acts, records, and 
proceedings shall be proved, and the effect thereof." '^^ 
Under this constitutional grant of authority Congress has 
enacted,^^ that "the acts of the legislature of any state 
or territory, or of any country subject to the jurisdiction 
of the United States, shall be authenticated by having 
the seals of such state, territory, or country affixed thereto. 
The records and judicial proceedings of the courts of any 
state or territory, or of any such country, shall be proved 
or admitted in any other court within the United States by 
the attestation of the clerk, and the seal of the court 
annexed, if there be a seal, together with a certificate of 
the judge, chief justice, or presiding magistrate, that the 
said attestation is in due form. And the said records and 
judicial proceedings so authenticated, shall have such faith 
and credit given to them in every court within the United 
States as they have by law or usage in the courts of the 
state from which they are taken. ' ' Legislative acts of a 
state are, under the terms of the Act of 1790, authenticated 
by the seal of the state, and in the absence of contrary 
proof, the seal will be presumed to have been affixed by 
the officer having its custody and duly authorized to affix 

75 1 1 rpjjg judgments of a foreign state are prima facie evidence only, and 
but for these constitutional and legislative provisions judgments of a state 
of the Union, when sued upon in another state, would have no greater 
effect. . . . Judgments rendered in . . . foreign country, by the laws of 
which oiu- own judgments are reviewable upon the merits, are not entitled to 
full credit and conclusive effect when sued upon in this country, but are 
prima facie evidence only of the justice of the plaintiff's claim:" Hilton 
V. Guyot, 159 U. S. 113, 182, 227. But where, by international comity, the 
courts of another country give full effect to the judgment of an American 
court, a judgment rendered in that country can be impeached only on the 
ground of fraud: Eitchie v. Mullen, 159 U. S. 235. 

•'' Act of 26th May, 1790, 1 Stat. 122 ; Eev. Stat., sec. 905. 



282 THE JUDICIAL. POWER. 

it to the records ^ Such acts will "be given the same 
effect by the courts of another state that they have by law 
and usage" in the state of their enactment; '^^ and, as the 
courts of every state and country have the exclusive 
power of construing its local statutes, their construction 
thereof will be followed in the courts of other countries 
and states/® On this line it has been held that if a state 
court has decided that a law is in harmony with the state 
constitution its validity, so far as the state constitution is 
concerned, cannot be questioned elsewhere.^^ Yet even an 
erroneous construction of a statute by the courts of an- 
other state does not deny to it the faith and credit re- 
quired by the Constitution where the local courts have 
not considered the statute or where their construction has 
not been proved as a fact in the foreign state.^^ And a 
construction by a state court of decrees made by a federal 
court and by a court of another state will not be held to 
deny full faith and credit to those decrees unless the 
unreasonableness of the construction is clearly shown.*^ 
It is essential to the enforcement in the courts of the states 
of the legislative acts ^^ and records of judicial proceed- 

'^U. S. V. Amedy, 11 Wteat. 392. 

'^ C. & A. E. V. W. F. Co., 119 U. S. 615, 622 ; cf. Friedlander v. T. & P. 
Bj., 130 id. 416. 

"Elmendorf v. Taylor, 10 Wheat. 152; Smith v. Condry, 1 How. 28; 
Bucher v. G. E., 125 U. S. 555; Cross v. Allen, 141 id. 528; B. T. Co. v. 
B. B. E., 151 id. 137; Laing v. Eigney, 160 id. 531; Turner v. Wilkes 
County Comrs., 173 id. 461 ; Mitchell v. First Nat. Bank, 180 id. 471 ; A. A. 
P. Co. V. D. P. Co., 191 id. 373. 

*° Spencer v. Merchant, 125 U. S. 345 ; Fallbrook Irr. Dist. v. Bradley, 
164 id. 112; Forsyth v. Hammond, 166 id. 506; In re Dvmcan, 139 id. 
449; Leeper v. Texas, itid. 462; Andrews v. Swartz, 156 id. 2,12', Miller 
V. C. E., 168 id. 131; Brown v. New Jersey, 175 id. 172; Erb v. Morasch, 
177 id. 584; Wilkes County v. Coler, 180 id. 506. 

«^ Glenn v. Garth, 147 U. S. 360; Lloyd v. Matthews, 155 id. 222; Ban- 
holzer v. N. Y. L. I. Co., 178 id. 402 ; Johnson v. N. Y. L. I. Co., 187 id. 
491 ; E. B. & L. Assn. v. Williamson, 189 id. 122 ; Finney v. Guy, iUd. 335. 
See also E. B. & L. Assn. v. Ebaugh, 185 id. 114. 

^^ C. P. Co. V. Beekwith, 188 U. S. 567. 

«« U. S. V. Amedy, 11 Wheat. 392. 



THE ''pull faith AND CREDIT " CLAUSE. 283 

ings in the courts ^* of another state, that they be certified 
in strict compliance with the directions of the act of Con- 
gress. But a judgment of a state court, though certi- 
fied in accordance with the act of Congress, does not 
operate propria vigore in another state, and in order to 
give it the force of a judgment in that other state, suit 
must be brought upon it there, and the period of limita- 
tion as prescribed by the lex fori may be pleaded as 
against such a judgment.^^ When so certified and sued 
upon, such judgments must be given the same effect that 
is given to them in the jurisdiction in which they have been 
rendered. Therefore, to an action on a judgment so 
certified, nil debet cannot be pleaded; ^® nor, it seems, can 
fraud be pleaded to an action on such a judgment.^^ 
When the record of a judgment falsely recites an appear- 
ance by counsel, it cannot be collaterally impeached, when 
sued upon in another state, for it might have been set 
aside by audita querela, in the jurisdiction wherein it was 
rendered.^^ But no greater effect can be given in a state 
court to a judgment of a court of another state than would 

«*Caperton v. Ballard, 14 Wall. 238; Ferguson v. Harwood, 7 Cr. 408; 
Owings V. Hull, 9 Pet. 607, 627. 

^ McElmoyle v. Cohen, 13 Pet. 312 ; Bank of Alabama v. Dalton, 9 How. 
522; Bacon v. Howard, 20 id. 22. 

^ Armstrong v. Carson, 2 Dall. 302 ; Mills v. Duryee, 7 Cr. 481 ; Hampton 
V. McConnel, 3 Wheat. 234. 

*' Christmas v. Russell, 5 Wall. 290 ; Maxwell v. Stewart, 22 id. 77. See, 
however, dicta in McNitt v. Turner, 16 Wall. 352, 366; Cole v. Cunning- 
ham, 133 U. S. 107, 112; Simmons v. Saul, 138 id. 439, 454. In Cole v. 
Cunningham, it was held that a court may enjoin a citizen of its own state 
from prosecuting fraudulent proceedings commenced by him in the covu-ts 
of another state. In Andrews v. Andrews, 188 U. S. 14, a state court 
properly refused credit to a divorce obtained by fraud in another state. 

^'Landes v. Brant, 10 How. 348, 371; cf. Knowles v. G. & C. Co., 19 
Wall. 58; Cooper v. Newell, 173 U. S. 555. A judgment conclusive in the 
state in which it has been rendered is conclusive in the courts of the 
United States: Caldwell v. Carrington, 9 Pet. 86; Christmas v. Russell, 5 
Wall. 302; Cheever v. Wilson, 9 id. 108; Pennoyer v. Neff, 95 U. S. 714; 
C. & A. R. V. W. F. Co., 108 id. 18; Erb v. Morasch, 177 id. 584. 
19 



284 THE JUDICIAL. POWER. 

be given to that judgment in the state where rendered. 
Therefore, a personal judgment which has been rendered 
in one state against several parties jointly, service of pro- 
cess having been made on some of them, or they having 
voluntarily appeared, and service having been made by 
publication as to the others, is not evidence outside of the 
state of any liability on the part of those not personally 
served.^® Nor will a judgment rendered in one state against 
two joint debtors, only one of whom has been served with 
process, support an action in a court of another state 
against the party not served, nor avail as the foundation 
of a judgment against him.^^ A judgment recovered in 
one state against two joint defendants, one of whom has 
been duly summoned and the other has not, and which is 
valid and enforcible by the law of that state against the 
party served with process, will support an action against 
that party in another state.^^ It is an essential pre- 
requisite to the enforcement in any court of a judgment, 
either in personam or in rem, rendered in any court, that 
the court rendering the judgment had by law jurisdiction 
of the subject-matter of the suit;*^^ and, if the judgment 
was in personam, that the defendant either was served 
with process within the territorial jurisdiction of the court, 
or voluntarily appeared in the suit ; ^^ and, if the judg- 

*" Board of Pub. Works v. Columbia College, 17 Wall. 521. 

""D'Arcy v. Ketchum, 11 How. 165. 

"^ Hanley v. Donoghue, 116 U. S. 1; Eenaud v. Abbott, ibid. 277. 

«= Glass V. Sloop Betsey, 3 Ball. 6 ; Eose v. Himely, 4 Cr. 241, 269 ; Elliott 
V. Peirsol, 1 Pet. 328, 340; Voorhees v. Bank of the U. S., 10 id. 449, 475; 
Wilcox V. Jackson, 13 id. 498, 511; Shriver's Lessee v. Lynn, 2 How. 43, 
59; Lessee of Hickey -;;. Stewart, 3 id. 750, 762; Williamson v. Berry, 8 
How. 495, 540; Thompson v. Whitman, 18 Wall. 457; Maxwell v. Stewart, 
22 id. 77; Cole v. Cunningham, 133 U. S. 107; Simmons v. Saul, 138 id. 
439; Thormann v. Frame, 176 id. 350; Clarke v. Clarke, 178 id. 186; 
Andrews v. Andrews, 188 id. 14; G. S. & L. S. v. Dormitzer, 192 id. 125. 

'"Mayhew v. Thatcher, 6 Wheat. 129; D'Arcy v. Ketchum, 11 How. 165; 
Harris v. Hardeman, 14 id. 334; L. I. Co. v. French, 18 id. 404; Bischoff 
V. Wethered, 9 Wall. 812; Board of Public Works v. Columbia College, 



THE ''full faith AISTD CKEDIT" CLAUSE. 285 

ment was in rem, that the res was within the territorial 
jurisdiction of the court acting upon it, and was properly 
brought under its control;^* for process issued by any 
court, and served personally on a defendant out of its 
territorial jurisdiction, and process published within that 
territorial jurisdiction, are equally unavailing in a pro- 
ceeding to establish a personal liability on the part of the 
defendant, and while, where property is by seizure or some 
equivalent act brought within the control of a court, sub- 
stituted service by publication is sufficient to inform a 
non-resident owner of the property of the object of the 
proceeding, such publication is not effectual to ground 
a personal liability upon.^^ But if a non-resident de- 
fendant has by attorney voluntarily appeared in the ac- 
tion, and judgment has been rendered in his favour in the 
court of the first instance, he may, after the withdrawal 
of his attorney's appearance, be notified, by publication,, 
of a writ of error or appeal, by means of which the cause 
is removed to an appellate tribunal, and a judgment of 
reversal in that tribunal will be binding on him as a judg- 
ment in personam, and as such enforcible against him in 
the court of another state,^^ And a judgment in personam 
may be rendered in a proceeding in rem against a defend- 
ant out of the jurisdiction, who has by his voluntary 
appearance made himself a party to the litigation, and 
such a judgment is enforcible by an action thereon in 

17 id. 521; Pennoyer v. Neff, 95 IJ. S. 714; St. Clair v. Cox, 106 id. 350; 
G. & B. S. M. Co. V. Eadeliffe, 137 id. 287; Cooper v. NeweU, 173 id. 555. See 
also Wedding v. Meyler, 192 id. 573. 

^Boswell V. Otis, 9 How. 336; Ennis v. Smith, 14 id. 400, 430; Cooper 
V. Eeynolds, 10 Wall. 308; Johnson v. Powers, 139 U. S. 156; Reynolds 
V. Stockton, 140 id. 254; Carpenter v. Strange, 141 id. 87; Cooper v. Newell, 
173 id. 555; Howard v. De Cordova, 177 id. 609; Clarke v. Clarke, 178 
id. 186. 

«^ Pennoyer v. Neff, 95 U. S. 714; Cooper v. Eeynolds, 10 Wall. 308; 
Webster v. Eeid, 11 How. 437; Phelps v. Holker, 1 Dall. 261; Freeman v. 
Alderson, 119 U. S. 185. 

^ Nations v. Johnson, 24 How. 195. 



286 THE JUDICIAL POWER. 

another state against that defendant.^" Yet where the 
defendant takes no part in the proceedings after respond- 
ing to the complaint as filed, and on those pleadings a 
judgment is rendered which is in no way responsive to 
them, that fact may be set up in bar to a recovery on the 
judgment.^^ A court may take jurisdiction of an action 
for divorce brought by a citizen of its own state, upon 
constructive notice of the action being given to the de- 
fendant,^^ but where neither party is domiciled within the 
state, then, although the defendant has received actual 
notice, a decree of divorce is not entitled to faith and 
credit in any other jurisdiction.^^*^ Where a corporation 
chartered by one state is permitted by another state to 
transact business therein upon condition that service of 
process upon a resident agent of the corporation should 
be considered as service upon the corporation, a judgment 
rendered in the latter state against the corporation, and 
based upon such service of process upon the agent, must 
be received in the state chartering the corporation with 
the same faith and credit that is given to it in the state 
wherein it is rendered.^ But a judgment in personam 
rendered against a foreign corporation in a suit begun in a 
state court by an attachment of property, and, as incident 
thereto, a service of a copy of the writ and an inventory 
of the attached property on a resident agent, without 
appearance by the corporation, is not conclusive in another 
action to which the corporation is a party in a court of the 
United States.^ Where a court of one state grants pro- 

^' Maxwell v. Stewart, 22 Wall. 77. 

^' Eeynolds v. Stockton, 140 U. S. 254. 

^ Atherton v. Atherton, 181 IT. S. 155. 

^<* Andrews v. Andrews, 188 U. S. 14; Brewer, Shiras, and Peckham, JJ., 
dissenting. See also G. S. & L. S. v. Dormitzer, 192 id. 125; Bell v. Bell, 
181 id. 175; Streitwolf v. Streitwolf, ibid. 179. 

^L. I. Co. V. French, 18 How. 404. 

= St. Clair v. Cox, 106 U. S. 350. 



THE ''full faith AND CREDIT" CLAUSE. 287 

bate of a will disposing of lands in another state, it merely 
decides that the will was executed in accordance with the 
laws of the domicile, and a court of the state in which the 
land is situated does not violate the constitutional pro- 
vision in deciding that the will was not executed in accord- 
ance with its own laws.^ The record of a judgment 
rendered in another state may be contradicted as to the 
facts necessary to give the court jurisdiction, and its 
recital of the existence of such facts is not conclusive, and 
want of jurisdiction may be shown either as to the subject- 
matter or as to the person, and, in proceedings in rem, as 
to the res. Therefore, in an action of trespass de bonis, 
etc., in a court of the United States against a county 
sheriff of New Jersey for taking the plaintiff's oyster 
boat, the defendant having pleaded in justification the 
record of a forfeiture of the boat under a New Jersey 
statute authorizing a summary conviction on a hearing by 
two justices of the county in which the seizure was made, 
it was held, that the recital in the record of a seizure of 
the boat in the county in which the justices exercised 
jurisdiction was open to contradiction by evidence that the 
seizure was not made within the territorial limits of that 
county.^ On the same principle, a recital in a record 
of a personal service of a summons upon a defendant, may 
be contradicted by proof that the defendant was not 
served ; ^ and a recital of appearance by attorney may be 
contradicted by showing that no attorney was authorized 
to appear for the defendant in the suit.® Administrators 
in different jurisdictions of the personal estate of the same 
decedent are not privies in estate to the extent that a 
judgment in one jurisdiction against one administrator 

' Blount V. Walker, 134 U. S. 607. 
* Thompson v. Whitman, 18 Wall. 457. 
= Knowles v. G. & C. Co., 19 Wall. 58. 
« Cooper V. Newell, 173 U. S. 555. 



288 THE JUDICIAL POWER. 

is enforcible in the other jurisdiction against the ad- 
ministrator therein ; "^ and the grant of letters of adminis- 
tration in one state cannot authorize the administrator to 
maintain any suit in the courts, either state or federal, held 
in any other state.^ An objection to the informality of the 
authentication of a record cannot be made by a party who 
has antecedently offered that identical record in another 
proceeding,^ In a suit for wages the defendant can set 
up a judgment in garnishment proceedings against the 
same wages, recovered in another state, and that judg- 
ment is a bar to further action.^ ° A state statute of limita- 
tions, providing that suits upon judgments rendered in 
other states, if not brought within two years, shall be 
barred, is a bar to an action on such a judgment against 
one who only became a citizen of the state on the day on 
which suit was brought.^ ^ A judgment recovered on a 
penal statute of a state cannot be enforced in another 
jurisdiction; ^2 but the rule is otherwise when the judg- 
ment has been recovered on a statute affording a private 
remedy to the person injured.^^ A state may deny to its 
courts jurisdiction over suits between foreign corpora- 
tions on a foreign judgment, for ''this provision of the 
Constitution establishes a rule of evidence rather than of 
jurisdiction."^^ Wherever a state court refuses in a 
cause to give due effect to a judgment rendered in a court 
of the United States, or in a court of another state, having 
by law jurisdiction of the subject-matter of litigation, and 
having acquired by due service of process, or otherwise, 

' Stacy V. Thrasher, 6 How. 44, 

' Johnson v. Powers, 139 IT. S. 156. 

*Urtetiqui v. D'Arbel, 9 Pet. 692. 
^o C, E. I. & P. Ey. V. Sturm, 174 U. S. 710. 
" Bank of the State of Alabama v. Dalton, 9 How. 522. 
^= Wisconsin v. P. I. Co., 127 U. S. 265. 

"Huntington v. Attrill, 146 U. S. 657; Whitman v. Oxford Nat. Bank, 
176 id. 559 ; Hancock Nat. Bank v. Parnum, ibid. 640. 
"A. A. P. Co. V. D. P. Co., 191 U. S. 373. 



THE ''full faith AND CKEDIt" CLAUSE. 289 

jurisdiction of the person of the party against whom 
judgment has been rendered, the action of the state court 
in so refusing is subject to review in the Supreme Court 
of the United States under the 25th Section of Judiciary 
Act of 1789, and the Act of 5th February, 1867.^'^ The 
record of a court of the United States is sufficiently 
proved when certified by the clerk of the court under its 
seal.^® And the judgments of the courts of the United 
States, when sued upon, or set up by way of defense in 
state courts, are, if rendered in a cause of which the court 
of the United States had jurisdiction both as to the sub- 
ject-matter and the res or the person of the defendant, 
conclusive upon the parties and privies thereto, and 
enforcible in the state courts to the same extent as in 
courts of the United States.^ ^ Judgments rendered in 
courts of the United States in causes, jurisdiction of which 
was obtained by reason of the citizenship of the parties, 
and in which the law of the state within which the court 
sat was administered, have only that validity and effect 
which is due to a judgment of a court of the state in such 
a cause,^* and, therefore, a court of a state which refuses 
to give a greater effect to such a judgment of a court of 
the United States cannot be said to decide against a title 
or right claimed under an authority exercised under the 
United States. 

^=14 Stat. 385. Eev. Stat., Sec. 709. 

lOTurnbull v. Payson, 95 U. S. 418. 

"Embry v. Palmer, 107 U. S. 3; Werlein v. New Orleans, 177 id. 390. 
See also N. F. & P. W. v. O. W. S. Co., 183 id. 216; Deposit Bank 
V. Frankfort, 191 id. 499. 

" Dupasseur v. Eochereau, 21 Wall. 130. 



CHAPTER XI. 

EIGHTS OF PEESON AND OF PEOPEETY. 

119. Citizenship of the United States. 

120. Citizenship of a state. 

121. The right of suffrage. 

122. The right of serving on juries. 

123. Congressional regulation of federal elections. 

124. Immigrants and aliens. 

125. Personal and property rights. 

126. The rights within a state of citizens of other states. 

127. Foreign corporations. 

128. The I Amendment. 

129. The XIII Amendment. 

130. The XIV Amendment. 

131. The equal protection of the laws. 

132. The police power. 

Citizenship of the United States. 

119. As Miller, J., stated in the judgment in the 
Slaughter House Cases/ the Constitution, as originally 
adopted, did not define citizenship of the United States, 
although it did, by Section 2 of Article IV, provide that 
'Hhe citizens of each state shall be entitled to all privileges 
and immunities of citizens in the several states," and, by 
Section 2 of Article I, declare citizenship of the United 
States to be a necessary qualification for election as a 
representative in Congress. In view of that which the 
Constitution said, and of that which it left unsaid, it might 
well have been thought that citizenship of the United 
States was dependent upon and only incident to citizen- 
ship of a state, but the point was not judicially determined 
before the adoption of the XIV Amendment. In a recent 

^ 16 Wall. 72. 

290 



CITIZENSHIP OF THE UNITED STATES. 291 

case,^ however, Gray, J., discussed at length the meaning of 
the term "citizen" as used at common law and suggested 
that after the adoption of the Constitution all white per- 
sons, at least, born within the sovereignty of the United 
States, whether children of citizens or of foreigners, ex- 
cepting only children of Embassadors or public ministers 
of a foreign government, were native-born citizens of 
the United States. An even broader definition of the term 
was established by Section 1 of theXIV Amendment, which 
declares that" all persons born or naturalized in theUnited 
States, and subject to the jurisdiction thereof, are citizens 
of the United States and of the state wherein they reside. ' ' 
From and after the adoption of that Amendment, there- 
fore, the birth within the United States of any person, 
whether white or coloured, who is subject to its juris- 
diction, or the naturalization of any alien, makes the per- 
son so born, or naturalized, a citizen of the United States f 
and that right of citizenship is entitled to protection under 
such laws as Congress may enact in execution of the 
powers conferred by the XIV and XV Amendments. 
Section 8 of Article I of the Constitution authorizes Con- 
gress "to establish an uniform rule of naturalization." 
It is, therefore, beyond the power of any state to prescribe 
the conditions of naturalization, or to admit to citizenship 
any alien other than those whom the acts of Congress 
permit to be naturalized ; ^ nevertheless aliens may be 
naturalized by proceedings in courts of the states in con- 
formity with the acts of Congress.^ 

' U. S. V. Wong Kim Ark, 169 U. S. 649. 

* The Slaughter House Cases, 16 Wall. 73 ; IT. S. v. Cruilishank, 92 U. S. 
548; U. S. V. Wong Kim Ark, 169 id. 649, cf. Elk v. Wilkins, 112 id. 94. 
Congress may, by statute or treaty, provide for the collective naturalization 
of the citizens of a territory upon its admission to statehood: Boyd v. 
Nebraska, 143 U. S. 135; Contzen v. TJ. S., 179 id. 191. 

* Chirac v. Chirac, 2 Wheat. 269 ; Dred Scott v. Sandford, 19 How. 405. 
' CoUet V. Collet, 2 DaU. 294. 



292 EIGHTS OF PERSONS AND OF PEOPERTY. 

Citizenship of a state. 

120. In Dred Scott v. Sandford,^ the court determined 
that a free negro could not be a citizen of a state, but, in 
his dissenting judgment, Curtis, J., showed that it was an 
historical fact, that in five of the thirteen original states 
negroes were not only recognized as citizens, but also ad- 
mitted to the exercise of the right of suffrage, and that 
many acts of Congress had, by necessary implication, rec- 
ognized negroes as citizens; and the weight of authority 
supports the position, that each state could, so far as the 
Constitution of the United States does not restrain it, de- 
termine the status, and consequently the citizenship, of 
the persons domiciled within its territory.^ By the terms 
of the XIV Amendment, ' ' all persons born or naturalized 
in the United States, and subject to the jurisdiction 
thereof, are citizens of the United States and of the state 
wherein they reside. ' ' Therefore birth, or naturalization, 
in the United States, followed by residence within the 
territory of any state, makes the person so born or natu- 
ralized, and so residing, a citizen of that state. 

The right of suffrage. 

121. All citizens are not necessarily entitled to the exer- 
cise of the right of suffrage, for the term ''citizen,^' in 
the constitutional sense of the term, means one who owes 
the duty of allegiance and is entitled to the correlative 
right of protection, and it, therefore, includes persons 
who, by reason of sex, or age, may not be qualified to vote. 
The right of suffrage is a subject of state regulation, and 
not a privilege, or immunity, of citizenship protected by 
the Constitution of the United States,^ except in so far 

« 19 How. 393. 

^ Strader v. Graham, 10 How. 93; Holmes v. Jennison, 14 Pet. 540; 
Groves v. Slaughter, 15 id. 449; Prigg v. Pennsylvania, 16 id. 539. 
« Pope V. Williams, 193 U. S. 621. 



THE RIGHT OF SUFFRAGE. 293 

as the XIV Amendment protects it. The Constitution 
provides, in Section 2 of Article I, that, at congressional 
elections, "the electors in each state shall have the quali- 
fications requisite for electors of the most numerous 
branch of the state legislature. " ^ A state may, without 
contravening any constitutional provision, deny the suf- 
frage to women,^*^ but by force of the XV Amendment a 
state may not, in its limitations on the exercise of the right 
of suifrage, discriminate against citizens of the United 
States on account of their ' ' race, colour, or previous condi- 
tion of servitude." A state, therefore, cannot limit the 
right of suffrage to the white race.^^ Nevertheless, the 
power of Congress to legislate for the protection of the 
rights conferred by that Amendment being limited by the 
terms of the Amendment, Congress cannot by statute pro- 
vide for the punishment of state election officers for 
wrongfully refusing to receive the vote of a qualified 
voter at an election, when that refusal is not based upon 
a discrimination against the voter on account of his race, 
colour, or previous condition of servitude ; ^^ nor can Con- 
gress by a general statute provide for the punishment of 
individuals who bribe persons to whom the right of suf- 
frage is guaranteed by that Amendment ; ^^ nor can a con- 
viction in a court of the United States be sustained under 
an indictment which charges the defendant in general 
terms with an intent to hinder and prevent citizens of 
the United States, of African descent, therein named, in 
the free exercise and enjoyment of the rights, privileges, 
immunities, and protection, granted and secured to them 

» Wiley V. Sinkler, 179 IJ. S. 58. See also Mason v. Missouri, Hid. 328 ; 
Swafford v. Templeton, 185 id. 487. 

" Minor v. Happersett, 21 Wall. 162. 

" Ex parte Yarbrougli, 110 U. S. 665. See Giles v. Harris, 189 id. 475 ; 
Giles V. Teasley, 193 id. 146. 

^ IJ. S. V. Eeese, 92 U. S. 214. 

^ James v. Bowman, 190 U. S. 127. 



294 RIGHTS OF PERSONS AND OF PROPERTY. 

as citizens of the United States and of a state, without 
specifying any particular right, the enjoyment of which 
the conspirators intended to hinder or prevent.^* 

As the right of a citizen of a state to vote for 
representatives in Congress is derived not only from the 
constitution and laws of his state, but also from the Con- 
stitution and laws of the United States, it follows that a 
citizen, otherwise qualified under the constitution and 
laws of his state, may maintain an action at law in the 
circuit court of the United States to recover from officers 
of the state damages for their wrongful refusal of his vote 
at a congressional election.^ ^^ But where the constitu- 
tion of a state defines the qualifications for the exercise of 
the suffrage, and imposes the conditions of registry as a 
voter, one to whom registry is refused cannot, upon an 
allegation that the state's system of registration is void 
because it violates the XV Amendment, maintain a suit in 
equity in the circuit court of the United States to com- 
pel the state officers to register him as a voter under that 
system which he alleges to be void, for a decree in his 
favour would accomplish no practical result; ^^^ and when 
that citizen has brought an action at law in a court of the 
state to recover from state officers damages for their 
alleged wrongful refusal to register him as a voter, and 
when he has petitioned a court of the state for a man- 
damus to compel the state officers to register him as a 
voter, and the state court of last resort has entered judg- 
ment against him on the grounds that if the provisions 
of the state constitution are repugnant to the XV Amend- 
ment they are void and registrars appointed thereunder 
had no power to act, they could not be liable to him in 

"U. S. V. Cruiksliank, 92 U. S. 542. 

" a Wiley v. Sinkler, 179 U. S. 58 ; Swafford v. Templeton, 185 id. 487. 
" b Giles V. Harris, 189 U. S. 475 ; Harlan, Brewer, and Brown, JJ., 
dissented. 



THE RIGHT OF SERVING ON JURIES. 295 

damages for their refusal to register him, and they caimot 
be compelled by mandamus to register him; and the Su- 
preme Court of the United States cannot reverse the 
judgment of the state court upon writ of error, for the 
state court has denied relief to the plaintiff in error for 
reasons independent of the federal right upon which he 
claimed.^ ^'^ 

The right of serving on juries. 

122. The right of serving as a juror being incident to 
citizenship, a state cannot so regulate the selection of 
jurors in its courts as to prevent citizens of African de- 
scent from serving as jurors.^ ^ 

Congressional regulation of federal elections. 

123. Section 4 of Article I of the Constitution de- 
clares that, "the times, places and manner of holding 
elections for senators and representatives, shall be pre- 
scribed in each state by the legislature thereof; but the 
Congress may at any time by law make or alter such 
regulations, except as to the places of choosing senators. ' ' 
Under this clause of the Constitution, Congress without 
question provided for the election of its members by 
separate districts, composed of contiguous territory, and 
required the election in every district throughout the 
United States to be held on the Tuesday after the first 
Monday of November in every second year. In other re- 
spects, however, the exercise of power by Congress on 
this subject has been contested in the courts. In the 
several cases it has been held, that Congress, having a 
supervisory control over the election of its members, and 

"C.Giles V. Teasley, 193 U. S. 146. 

^' XV Amendment ; Strauder v. West Virginia, 100 U. S. 303 ; Virginia v. 
Eives, ibid. 313; Ex parte Virginia, ibid. 339; Neal v. Delaware, 103 id. 
370; Gibson v. Mississippi, 162 id. 565; Carter v. Texas, 177 id. 442; 
Eogers v. Alabama, 192 id. 226. 



296 RIGHTS OF PERSONS AND OF PROPERTY. 

being authorized to make regulations of its own, or to 
alter regulations made by any state, can by statute impose 
duties on state officers of election, punish the non-per- 
formance by such officers of their duties, whether imposed 
by laws of the state or by acts of Congress, and provide 
for the appointment of officers of the United States to 
execute the regulations as made by Congress or by the 
states.^ ^ It has also been held that Congress can, for the 
protection of the voters at congressional elections, punish 
acts of violence or intimidation done in furtherance of a 
conspiracy to prevent a voter from exercising the fran- 
chise at such elections ;^^ and it can punish interference 
with election officers when engaged in the discharge of 
their official duties.^ ^ 

The appointment and mode of appointment of electors 
belong exclusively to the states. Congress is empowered 
to determine the time of choosing electors and the day 
on which they shall give their votes, which must be the 
same day throughout the United States, but otherwise the 
power and jurisdiction of the state is exclusive, with the 
exception of the provisions as to the number of electors 
and the ineligibility of certain persons, so framed as to 
exclude federal influence.^^ 

Immigrants and aliens. 

124. The states cannot,^" and the United States can,^^ 
control and regulate immigration and the residence of 
aliens in the United States. This power is an incident of 
sovereignty which cannot be alienated in the exercise of 

^^Ex parte Siebold, 100 U. S. 371; Ex parte Clarke, iMd. 399; In re Coy, 
127 id. 731. 

" Ex parte Yarbrough, 110 TJ. S. 651. 

« Connors v. V. S., 158 U. S. 408. 

" McPherson v. Blacker, 146 U. S. 1 ; In re Green, 134 id. 377. 

-" Chy Lung v. Freeman, 92 U. S. 275, 280. 

=1 The Chinese Exclusion Case, 130 U. S. 581. 



IMMIGEANTS AND ALIENS. 297 

the treaty-making power.^^ Congress may, therefore, 
prohibit the immigration of any class of persons ; it may 
expel, and compel the deportation of, resident aliens; 
and ^^ it may forbid the transit of aliens across the terri- 
tory of the United States.^^ Congress may authorize the 
courts to investigate and ascertain the facts on which de- 
pends the right to land or to remain in the country ; ^^ or 
it may entrust to administrative officers the final deter- 
mination of these facts ; ^^ and the decisions of such officers 
will constitute due process of law,^^ and will be binding on 
the courts. Congress may authorize a United States com- 
missioner to determine the facts upon which citizenship 
depends.2^ "While Congress may, as a means to give effect 
to the legislation excluding or expelling aliens, authorize 
their detention in temporary confinement. Congress 
nevertheless cannot, unless provision be made for a judi- 
cial trial, declare an unlawful residence in the country to 
be an infamous crime punishable by imprisonment at 
hard labour.^*^ An administrative officer when executing 
a statute affecting the liberty of persons may not disregard 
the fundamental requirement of due process of law. There 
must, therefore, be adequate notice to, and a hearing of, 
the person affected ; ^^ but defects in the form of the pro- 
ceeding will not affect its validity, or the finality of its 
conclusion.2^ The existing legislation is applicable only 
to persons owing allegiance to a foreign government, and, 

^^ The Chinese Exclusion Case, supra. 
-^ Fong Yue Ting v. U. S., 149 TJ. S. 698. 
=* Fok Yung Yo v. U. S., 185 U. S. 296. 
'' U. S. V. Jung Ah Lung, 124 U. S. 621. 

-" V. S. V. Sing Tuck, 194 U. S. 161 ; Li Sing v. U. S., 180 id. 486. 
'^ Nishimura Ekiu v. U. S., 142 U. S. 651, 660. 

^ U. S. V. Wong Kim Ark, 169 U. S. 649 ; Chin Bak Kan v. U. S., 186 
id. 193. 

^»Wong Wing v. V. S., 163 U. S. 228. 

°° The Japanese Immigrant Case, 189 U. S. 86. 

" Fong Yue Ting, 149 U. S. 698, 729 ; Chin Bak Kan v. U. S., 186 id. 193. 



298 EIGHTS OF PEKSONS AND OP PEOPEETY. 

therefore, does not affect citizens of Porto Eico ; ^^ nor 
does it affect a child born in the United States of parents 
who, while remaining aliens, have a permanent domicile 
and residence in the United States.^^ 

Personal and property rights. 

125. The states retain full control over the personal and 
property rights of their citizens and of residents within 
their territory, subject to the restraints imposed by the 
Constitution.^^ The states retain the power of regulating 
the tenure of real property within their respective limits, 
including the mode of its acquisition and transfer, the 
rules of its descent, and the extent to which a testamentary 
disposition may be made of such land by its owner, and a 
state may forbid the United States, by reason of its not 
being a corporation created by the laws of that state, to 
take by devise lands within the state. ^^ The states may 
legislate specially for the sale or investment of the estates 

^-Gonzales v. WiUiams, 192 U. S. 1. 

^^U. S. V. Wong Kim Ark, 169 U. S. 649. 

^^ The first eight Amendments bind only the federal government : Spies 
V. Illinois, 123 U, S. 131, 166; Eilenbecker v. Plymouth County, 134 id. 31; 
In re Kemmler, 136 id. 436 ; McElvaine v. Brush, 142 id. 155 ; Thorington 
V. Montgomery, 147 id. 490; Moore v. Missouri, 159 id. 673; Brown v. New 
Jersey, 175 id. 172; C. C. D. Co. v. Ohio, 183 id. 238; Ohio v. Dollison, 194 id. 
445. The provision of the XIV Amendment that "no state shall make or 
enforce any law which shall abridge the privileges or immunities of citizens 
of the United States" protects, it seems, only those rights which are secured 
against state encroachment by other clauses of the Constitution. See In re 
Kemmler, 136 U. S. 436, 448 ; Giozza v. Tiernan, 148 id. 657, 661 ; Duncan 
V. Missouri, 152 id. 377, 382; Maxwell v. Dow, 176 id. 581; Slaughter House 
Cases, 16 Wall. 36, 79; Bartemeyer v. Iowa, 18 id. 129; Presser v. Illinois, 
116 U. S. 252 ; Mugler v. Kansas, 123 id. 623 ; In re Lockwood, 154 id. 116 ; 
Gray v. Connecticut, 159 id. 74; Plessy v. Ferguson, 163 id. 537; Holden v. 
Hardy, 169 id. 366 ; Cumming v. Board of Education, 175 id. 528 ; W. P. S. 
C. V. Casperson, 193 id. 189; Ohio v. Dollison, 194 id. 445. The Amendment 
does not extend to state legislation the restrictions which the first eight 
Amendments impose upon congressional action: Maxwell i;. Dow, 176 U. S. 
581, 597. Harlan, J., dissented. 

'' TJ. S. V. Fox, 94 U. S. 315. 



PEKSONAL AND PEOPEETY EIGHTS. 299 

of infants and other persons not sui juris.^^ The shores 
of navigable waters, and the soil under those waters, were 
not granted by the Constitution to the United States, but 
were reserved to the riparian states respectively, and new 
states have the same rights, sovereignty, and jurisdiction 
over this subject as the original states.^'^ The United 
States having no proprietary title to lands on the shore 
of a state, under navigable waters and below high-water 
mark, can grant no valid title thereto.^^ A state may, 
therefore, prohibit, or license under regulation, the taking 
of oysters and fish in the navigable waters within its 
limits.^ '^ The states may determine what classes of per- 
sons shall come and remain within their territory,^" pro- 
vided, of course, that they do not thereby impair the 
rights of intercourse and traffic secured by the Constitu- 
tions to citizens of other states, nor come into conflict with 
the regulations made by the United States as to immigra- 
tion and the residence of aliens.^^ The Constitution makes 
no provision for the protection of the citizens of the sev- 
eral states in their religious liberty, and imposes no re- 
straints on the states in that respect. Therefore, a judg- 
ment of a state court imposing a fine upon a clergyman 
for violation of a municipal ordinance regulating the place 
and manner of conducting funeral services, is not subject 
to review in the Supreme Court of the United States.^^ 

^^ Hoyt V. Sprague, 103 U. S. 613. 

^^ Pollard V. Hagan, 3 How. 212 ; Weber v. Harbour Commissioners, 18 
Wall. 57; Shively v. Bowlby, 152 U. S. 1; M. T. Co. v. Mobile, 187 id. 479. 

*^ Pollard V. Hagan, 3 How. 212; Goodtitle v. Kibbe, 9 id. 471; Doe v. 
Beebe, 13 id. 25 ; U. S. v. M. E. Co., 189 U. S. 391. 

'"> Smith V. Maryland, 18 How. 71 ; McCready v. Virginia, 94 U. S. 391. 

*" Holmes v. Jennison, 14 Pet. 540 ; Groves v. Slaughter, 15 id, 449 ; Prigg 
V. Pennsylvania, 16 id. 539. 

" Supra, Sec. 124. 

*=Permoli v. First Municipality, 3 How. 589. 
20 



300 EIGHTS OF PEKSONS AND OF PROPERTY. 

The rights within a state of citizens of other states. 

126. Section 2 of Article IV of the Constitution de- 
clares that ''the citizens of each state shall be entitled 
to all privileges and immunities of citizens in the several 
states." As Miller, J., said, in the Slaughter House 
Cases,*^ tlie ''sole purpose" of this constitutional pro- 
vision ' ' was to declare to the several states, that whatever 
those rights, as you grant or establish them to your own 
citizens, or as you limit, or qualify, or impose restrictions 
on their exercise, the same, neither more nor less, shall be 
the measure of the rights of citizens of other states within 
your jurisdiction. ' ' ^* Washington, J., said, in Corfield v. 
Coryell,^^ the privileges and immunities in question are 
those "which are fundamental, which belong of right to 
all citizens of all free governments, and which have at all 
times been enjoyed by citizens of the several states which 
compose this Union, from the time of their becoming free, 
independent, and sovereign," including "protection by 
the government, with the right to acquire and possess 
property of every kind, and to pursue and obtain happi- 
ness and safety, subject, nevertheless, to such restraints 
as the government may prescribe for the general good of 
the whole." In Paul v. Virginia,^^ Field, J., said, "The 
privileges and immunities secured to citizens of each state 
in the several states . . . are those privileges and im- 
munities which are common to the citizens in the latter 
states under their constitutions and laws by virtue of their 
being citizens. Special privileges enjoyed by citizens in 
their own states are not secured in other states by this 
provision. It was not intended by the provision to give 

" 16 Wall. 77. 

■" See, on the same line, Kimmish v. Ball, 129 U. S. 217, 222. Compare 
T. I. Co. V. Connecticut, 185 id. 364. 
*' 4 Wash. C. C. 371. 
^''S Wall. 180. 



RIGHTS OF CITIZENS OF OTHER STATES. 301 

to the laws of one state any operation in other states. 
They can have no such operation, except by the permis- 
sion, express or implied, of those states. The special 
privileges which they confer must, therefore, be enjoyed 
at home, unless the assent of other states to their enjoy- 
ment therein be given." It is clear that this provision 
guarantees the privileges and immunities of citizens of 
other states, and has no reference to action by a state in 
respect to its own citizens.^" "The Constitution of the 
United States does not make the privileges and immunities 
enjoyed by the citizens of one state under the constitution 
and laws of that state the measure of the privileges and 
immunities to be enjoyed, as of right, by a citizen of 
another state under its constitution and laws."^^ Nor 
does this constitutional provision vest the citizens of one 
state with any interest in the common property of citizens 
of another state. Therefore, a statute of a state by which 
other than its own citizens are prohibited from planting 
or taking oysters from the soil which is covered by the 
tide-waters of that state, is not a violation of any privilege 
or immunity of citizens, for, subject to the paramount 
right of navigation, the regulation of which in relation to 
foreign and interstate commerce has been granted to Con- 
gress by the Constitution, each state owns the soil of all 
tide-waters within its jurisdiction, and may appropriate 
them to be used by its citizens in common for cultivating 
and taking fish, etc., if navigation be not thereby ob- 
structed.*^ Nor does this constitutional provision require 
a state to confer upon citizens of other states peculiar 
privileges granted to its own citizens; thus, the privilege 
of community of acquets or gains as between married 

*' Bradwell v. State, 16 Wall. 130. 

** Harlan, J., in McKane v. Durston, 153 U. S. 684, 687. 
*^MeCready v. Virginia, 94 U. S. 391. See also Geer v. Connecticut, 161 
id. 519. 



302 RIGHTS OF PERSONS AND OF PROPERTY. 

persons in Louisiana, as regards lands in Louisiana ac- 
quired by a citizen of Mississippi who, while living in that 
state, has married a woman bom in Louisiana, cannot be 
claimed as a constitutional right, for the wife by her mar- 
riage became a citizen of Mississippi.^^ On the same 
principle, a state may enact a statute of limitations, dis- 
criminating, as regards suits against non-resident defend- 
ants, against creditors, if citizens of other states, and in 
favour of creditors who are citizens of the state.^^ On the 
other hand, a state cannot, without contravening this con- 
stitutional provision, so discriminate by taxation against 
either the natural products of, or the goods manufactured 
in, another state, as to hinder the citizens of that other 
state in their exercise of the rights of freely transporting 
and selling their goods manufactured or unmanufac- 
tured.^2 Nor can a state by taxation, or otherwise, restrict 

^"Conner v. Elliott, 18 How. 593; Curtis, J., said, "We do not deem it 
needful to attempt to define the word 'privileges' in the clause of the Con- 
stitution. It is safer and more in accordance with the duty of a judicial 
tribunal, to leave its meaning to be determined in each case, upon a view of 
the particular rights asserted and denied therein, and especially is this true, 
when we are dealing with so broad a provision, involving matters not only 
of great delicacy and importance, but which are of such a character that any 
merely abstract definition could scarcely be correct; and a failure to make 
it so would certainly produce mischief. ' ' In McCready v. Virginia, 94 U. S. 
395, Waite, C. J., after referring to the view thus expressed by Curtis, J., 
added, "this clearly is the safer course to pursue." These dicta, of course, 
mean only that in the decision of a cause, the court ought to confine them- 
selves to the case at bar and ought not so to generalize as to prejudice cases 
that have not yet arisen for determination, but they do not mean that the 
court, in order to arrive at a decision, should reason empii'ically, and should 
avoid a clear statement of the general principles whose application must 
necessarily determine the particular case. If they did mean that, they 
would establish a "rule" which is not "salutary," and they would lay 
down a "course" which is not the "safer" one to pursue. 

^^ Chemimg Canal Bank v. Lowery, 93 U. S. 72. Strong, J., dissented. 

^^Ward V. Maryland, 12 Wall. 418; Welton v. Missouri, 91 U. S. 275; 
Guy V. Baltimore, 100 id. 434; Webber v. Virginia, 103 id. 34:4 ; Walling v. 
Michigan, 116 id. 446; Bobbins v. Shelby County, 120 id. 489; Corson v. 
Maryland, Hid. 502; Asher v. Texas, 128 id. 129, But see Hinson v. Lott, 
8 Wall. 148; Downham v. Alexandria Council, 10 id. 173; Machine Co. v. 



FOEEIGN CORPORATIONS. 303 

the exercise by the citizens of other states of their right of 
free transit from place to place within the United States, 
in order to approach the seat of government of the United 
States and the federal offices in the various states.^^ Nor 
can a state by statute provide that in the distribution of 
the assets of insolvent debtors local creditors shall be 
given priority over creditors who are citizens of other 
states.^* 

Foreign corporations. 

127. Foreign corporations are, in the states of the 
United States, corporations created by any other state, or 
by a foreign government. A joint stock partnership or- 
ganized under the laws of a foreign country, with a statu- 
tory recognition of the distinctive entity of the association 
and with powers of transfer of shares and succession of 
members, and the right to sue and be sued as an aggre- 
gation, is regarded in the United States as a foreign cor- 
poration.^^ A corporation is not, in its corporate ca- 
pacity, a citizen, within the meaning of the Constitution ; ^^ 
but for jurisdictional purposes there is a conclusive pre- 
sumption of law that it is composed of citizens of the state 
which created it, and it may sue and be sued in its cor- 
porate name.^^ A foreign corporation is not a citizen 

Gage, 100 U. S, 676; Tiernan v. Einker, 102 id. 123; Picklen v. Shelby 
County, 145 id. 1; Emert v. Missouri, 156 id. 296; Eash v. Farley, 159 
id. 263. 

=5 Crandall v. Nevada, 6 Wall. 35. 

"Blake v. McClung, 172 U. S. 239, 176 id. 59; Sully v. American Nat. 
Bank, 178 id. 289. 

=»L. I. Co. V. Massachusetts, 10 WaU. 566. 

'^''The Bank of U. S. v. Deveaux, 5 Cr. 61; Paul v. Virginia, 8 WaU. 168; 
Blake v. McClung, 172 TJ. S. 239 ; O. I. Co. v. Daggs, iUd. 557. 

"L., C. & C. E. V. Letson, 2 How. 497; Marshall v. B. & O. E., 16 id. 314; 
C. D. Co. V. Shepherd, 20 id. 227 ; O. & M. E. v. Wheeler, 1 Bl. 286 ; Express 
Co. V. Kountze Bros., 8 Wall. 342; Ey. Co. v. Whitton, 13 id. 270; St. L. 
& S. F. Ey. V. James, 161 U. S. 545 ; St. J. & G. I. E. v. Steele, 167 id. 659 ; 
Blake v. McClung, 172 id. 239; L., N. A. & C. Ey. v. L. T. Co., 174 id. 552; 
S. Ey. V. Allison, 190 id. 326. 



304 EIGHTS OP PEKSONS AND OF PROPERTY. 

within the meaning of Section 2 of Article IV of the 
Constitution, which declares that ''the citizens of each 
state shall be entitled to all privileges and immunities of 
citizens in the several states." ^^ While corporations are 
persons within the meaning of the XIV Amendment,^® 
they are not entitled to such equal protection of the laws 
as to have the right to do business within a state, 
other than that of their incorporation, without be- 
ing hampered by such discriminating conditions as the 
state may choose to impose.^^ A corporation exists only 
in contemplation of law and by force of law, and it can 
have no legal existence beyond the bounds of the sover- 
eignty creating it, unless it be, by comity, permitted to 
exist within the bounds of some other sovereignty,^^ 
save only that a state may not exclude from its limits a 
corporation which is in the employ of the federal govern- 
ment,^^ or which is engaged in interstate or foreign com- 

=«Paul V. Virginia, 8 Wall. 168; P. M. Co. v. Pennsylvania, 125 U. S. 181; 
N. & W. E. V. Pennsylvania, 136 id. 114; Blake v. McClung, 172 id. 239; 
Sully V. American Nat. Bank, 178 id. 289. 

^« Santa Clara County v. S. P. E., 118 U. S. 394; C, C. & A. E. v. Gibbes, 

142 id. 386; C. & L. T. Co. v. Sandford, 164 id. 578; G., C. & S. F. Ey. v. 
Ellis, 165 id. 150; Smyth v. Ames, 169 id. 466; L. S. & M. S. Ey. v. Smith, 
173 id. 684; P. M. Co. v. Pennsylvania, 125 id. 181; M. P. Ey. v. Mackey, 
127 id. 205; M. & S. L. Ey. v. Herrick, iUd. 210; M. & S. L. Ey. v. Beckvrith, 
129 id. 26, 28. 

"» P. F. Assn. V. New York, 119 U. S. 110 ; P. M. Co. v. Pennsylvania, 125 
id. 181; O. I. Co. v. Daggs, 172 id. 557; W.-P. O. Co. v. Texas, 177 id. 28; 
Sully V. American Nat. Bank, 178 id. 289; of. N. Y., L. E. & W. E. v. 
Pennsylvania, 153 id. 628; Nutting i;. Massachusetts, 183 id. 553. 

"^ Bank of Augusta v. Earle, 13 Pet. 519 ; Eunyan v. Coster, 14 id. 122 ; 
O. & M. E. V. Wheeler, 1 Bl. 286 ; P. M. Co. v. Pennsylvania, 125 U. S. 181 ; 
H. S. M. Co. V. New York, 143 id. 305 ; Ashley v. Eyan, 153 id. 436 ; Hooper 
V. California, 155 id. 648; New York v. Eoberts, 171 id. 658; N. Y. L. I. 
Co. V. Cravens, 178 id. 389; Nutting v. Massachusetts, 183 id. 553. See 
also D. C. & I. Co. V. Barton, iUd. 23 ; D. G. Co. v. U. S. G. Co., 187 id. 611. 

«' P. M. Co. V. Pennsylvania, 125 U. S. 181 ; H. S. M. Co. v. New York, 

143 id. 305. 



FOREIGlsr CORPORATIONS. 305 

merce.^^ Of course, if there be no prohibitory legislation, 
it is not competent for an individual citizen, not personally 
interested in the corporation, to object to the doing of 
business within a state by a foreign corporation.*^* Un- 
less the local law prohibit, a foreign corporation, if its 
charter so authorizes, may sue and be sued in the courts of 
a state,**^ make contracts,**^ acquire and hold real estate,*^'^ 
buy and sell bills of exchange,^* and negotiate and is- 
sue policies of life and fire insurance.*^^ Corporations, 
by doing business within the bounds of a sovereignty other 
than that which has created them, do not become cor- 
porations of that other sovereignty, nor lose privileges 
which are incident to their citizenship in the sovereignty 
which created them. Therefore, a railway corporation 
of Maryland does not, by becoming lessee of a railway 
in Virginia, forfeit its right to remove into the Circuit 
Court of the United States a suit brought against it in the 
courts of Virginia by a citizen of that state.'^'^ A state 

'' p. M. Co. V. Pennsylvania, 125 U. S. 181 ; McCall v. California, 136 id. 
104; N. & W. E. V. Pennsylvania, ibid. 114; Crutcher v. Kentucky, 141 id. 
47; H. S. M. Co. v. New York, 143 id. 305; Ashley v. Eyan, 153 id. 436; 
P. T. C. Co. V. Adams, 155 id. 688; cf. California v. C. P. E., 127 id. 1; 
Maine v. G. T. Ey., 142 id. 217. 

«*Waite, C. J., said in P. T. Co. v. W. U. T. Co., 96 U. S. 1, 13, ''No 
citizen of a state can enjoin a foreign corporation from pursuing its busi- 
ness. Until the state acts in its sovereign capacity, individual citizens can- 
not complain. The state must determine for itself when the public good 
requires that its implied assent to the admission shall be withdrawn. ' ' 

•^Bank of Augusta v. Earle, 13 Pet. 519, 587; Cowles v. Mercer County, 
7 Wall. 118. 

**Bank of Augusta v. Earle, 13 Pet. 519, 591; Eunyan v. Coster, 14 id. 
122, 129. 

" Eunyan v. Coster, 14 Pet. 122 ; S. F. et A. des E. U. v. Milliken, 135 
U. S. 304. 

"^Bank of Augusta v. Earle, 13 Pet. 519. 

•"Paul V. Virginia, 8 Wall. 168; Ducat v. Chicago, 10 id. 410; L. I. Co. 
V. Massachusetts, ibid. 566; P. F. A. v. New York, 119 U. S. 110. 

'"Eailroad Co. v. Koontz, 104 U. S. 5. See also St. L. & S. F. Ey. v. 
James, 161 id. 545; L., N. A. & C. Ey. v. L. T. Co., 174 id. 552; S. Ey. 
V. Allison, 190 id. 326. 



306 RIGHTS OF PERSONS AND OF PROPERTY. 

may discriminate in favour of its own corporations and 
against foreign corporations ; '^^ it may tax foreign cor- 
porations ; '^^ it may arbitrarily refuse to foreign corpora- 
tions permission to do business within its territory, or it 
may give its consent on any conditions which ''are not 
repugnant to the Constitution or laws of the United States, 
nor inconsistent with those rules of public law which 
secure the jurisdiction and authority of each state from 
encroachment by all others, or that principle of natural 
justice which forbids condemnation without opportunity 
for defense ; " '^^ it may impose on a foreign corporation a 
condition that service of process on the resident agent 
representative of the corporation on reasonable notice 
shall be considered a service upon the corporation,'^* 
and it may prohibit the transaction of the business of in- 
surance within its bounds by a foreign corporation, or it 
may impose in its discretion conditions on the perform- 
ance of such business, for contracts of insurance being 
covenants for indemnity and not articles of commerce, the 
negotiation and issue of policies of insurance are not trans- 
actions of foreign or interstate commerceJ^ But a state 
cannot, by any alteration of the conditions imposed upon 
foreign corporations doing business within the state, im- 
pair the obligation of contracts lawfully made J ^ So also 

" Paul V. Virginia, 8 Wall. 168 ; Ducat v. Chicago, 10 id. 410. 

"Paul V. Virginia, 8 Wall. 168; Ducat v. Chicago, 10 id. 410; L. I. Co. v. 
Massachusetts, iUd. 566; H. S. M. Co. v. New York, 143 U. S. 305. See 
also Kidd v. Alabama, 188 id. 730. 

"L. I. Co. V. French, 18 How. 404, 407; Paul v. Virginia, 8 Wall. 168; 
St. Clair v. Cox, 106 U. S. 350, 356 ; H. S. M. Co. v. New York, 143 id. 305 ; 
Ashley v. Eyan, 153 id. 436; Hooper v. California, 155 id. 648; New York 
V. Eoberts, 171 id. 658 ; Bedford v. B. B. & L. Assn., 181 id. 227. 

"L. I. Co. V. French, 18 How. 404; St. Clair v. Cox, 106 U. S. 350, 356. 

'^ Paul V. Virginia, 8 Wall. 168 ; Ducat v. Chicago, 10 id. 410 ; L. I. Co. 
V. Massachusetts, ibid. 566 ; P. F. Assn. v. New York, 119 U. S. 110 ; Hooper 
V. California, 155 id. 648 ; N. Y. L. I. Co. v. Cravens, 178 id. 389. 

'« Bedford v. E. B. & L. Assn., 181 U. S. 227; cf. D. G. Co. v. U. S. G. 
Co., 187 id. 611. 



FOREIGN COEPORATIONS. 307 

a state cannot rightfully impose as a condition the non- 
exercise b}^ a corporation of its right of removing to the 
courts of the United States actions brought against it in 
the courts of the state.^^ If, however, a state prohibit a 
foreign corporation from doing business within its bounds 
because the corporation will not forego the exercise of 
its right of removal of actions, the corporation cannot be 
protected by an injunction issued by the courts of the 
United States ; '^^ but a state statute, requiring foreign 
corporations as a condition of doing business in a state to 
stipulate that they will not remove into the courts of the 
United States causes which under the laws of the United 
States they would be entitled to remove, is void ; '^^ and a 
servant of the corporation^"^ cannot be convicted for 
doing business for a corporation which had not complied 
with the statute.^^ A substantial compliance by a foreign 
corporation with the condition on which it is permitted to 
do business within the bounds of another sovereignty is 
sufficient; thus, the law of Colorado requiring the filing 
of a certificate "designating the principal place where 
the business of such corporation shall be carried on in 
this state, and an authorized agent or agents, residing at 
its principal place of business, upon whom process may 
be served," is sufficiently complied with by a certificate 
naming the town in which the business is to be carried on 
and stating "that the general manager of said corpora- 
tion residing at the said principal place of business, is the 
agent upon whom process may be served, ' ' but not giving 
the name of the general manager.^^ A foreign corpora- 
tion does not, by making a single contract for the sale of 

"H. I. Co. V. Morse, 20 WaU. 445; S. P. Co. v. Denton, 146 U. S. 202. 

'« Doyle V. C. I. Co., 94 U. S. 535 ; Cable v. U. S. L. I. Co., 191 id. 288. 

" Barron v. Bui-nside, 121 U. S. 186. 

^ In this case an engine driver of a foreign railway corporation. 

^ Barron v. Burnside, 121 U. S. 186. 

"^ Goodwin v. C. M. I. Co., 110 U. S. 1. 



308 RIGHTS OF PERSONS AND OF PROPERTY. 

machinery, come within the provisions of a statute for- 
bidding foreign corporations to ''do any business" 
within the state,^^ but it does come within a similar 
statute when it loans money upon a note and mortgage 
solicited by its agent and executed within the state, 
although the instruments especially stipulate that they are 
made with reference to and under the laws of the home 
state of the corporation.** Moreover, a foreign insurance 
company does not cease to do business within the state by 
withdrawing its agent and refusing new risks if its old 
policies continue in force and premiums are paid thereon 
by the policy-holders.*^ 

Every one who deals with a foreign corporation im- 
pliedly subjects himself to the laws of the foreign govern- 
ment which chartered the corporation, so far as those laws 
affect the powers and obligations of the corporation or the 
validity, enforcement, or discharge of its contracts ; thus, 
for instance, a holder in the United States of bonds, issued 
by a railway corporation of Canada, but negotiated, and 
stipulated to be paid, in the United States, is bound by 
the terms of a statutory scheme of arrangement enacted 
by the Parliament of Canada subsequently to the issue 
and sale of the bonds.*^ On the same principle, a holder 
in Louisiana of a policy of life insurance issued in that 
state by a Missouri corporation is chargeable with notice 
of the insurance laws of Missouri substituting the in- 
surance commissioner of that state as the representative 
of insolvent insurance companies.*'^ 

«'C. M. Co. V. Ferguson, 113 U. S. 727. But see also Fritts v. Palmer, 
132 id. 282; F. & M. C. Co. v. Fitzgerald, 137 id. 98; C. N. B. & L. Assn. v. 
Denson, 189 id.AOS. 

'* C. N. B. & L. Assn. v. Denson, 189 U. S. 408. 

^ C. M. L. I. Co. V. Spratley, 172 U. S. 602. 

^ C. S. Ey. V. Gebhard, 109 U. S. 527. 

«" Eelfe V. Bundle, 103 U. S. 222. See also Pinney v. Nelson, 183 id. 144. 



THE I AMENDMENT. 309 

The I Amendment. 

128. The I Amendment declares that ''Congress shall 
make no law respecting an establishment of religion or 
prohibiting the free exercise thereof; or abridging the 
freedom of speech, or of the press; or the right of the 
people peaceably to assemble, and to petition the govern- 
ment for a redress of grievances." The clause as to 
religion cannot ' ' be invoked as a protection against legis- 
lation for the punishment of acts inimical to the peace, 
good order, and morals of society ; " ^* nor does the clause 
prevent Congress from declaring the marriage, in a terri- 
tory or other place over which the United States have 
exclusive jurisdiction, of any person having a husband or 
wife living and undivorced, etc., to be bigamy ; nor can 
one convicted of bigamy successfully defend upon his 
allegation that he religiously believed in plural mar- 
riages ; ^^ nor does this clause prohibit a contract of the 
commissioners of the District of Columbia with an incor- 
porated charitable association for the application of the 
moneys of the United States in the construction of hospital 
buildings in which paupers are to be housed and to be 
cared for by devotees of the Roman Catholic faith ; ^^ nor 
does the clause as to the freedom of speech and of the 
press prohibit congressional legislation forbidding the 
transportation of lottery tickets and advertisements by the 
mails ; ^^ nor does the Amendment forbid congressional 
prohibition of the immigration of anarchists,^^ 

^ Per Field, J., Davis v. Beason, 133 U. S. 333, 342. 

«^ EeynoMs v. U. S., 98 U. S. 145. See also Mormon Church v. U. S., 136 
id. 1. 

"" Bradfield v. Eoberts, 175 U. S. 291. 

°^ In re Eapier, 143 U. S. 110. As to the right of assembly and of peti- 
tion, see U. S. V. Cruikshank, 92 U. S. 542, 552. 

"^U. S. V. Williams, 194 U. S. 279, 292. 



310 RIGHTS OF PERSONS AND OF PROPERTY. 

The XIII Amendment. 

129. The XIII Amendment declares that ^'neither 
slavery nor involuntary servitude, except as a punish- 
ment for crime whereof the party shall have been duly 
convicted, shall exist within the United States, or any place 
subject to their jurisdiction," and that "Congress shall 
have power to enforce this Article by appropriate legis- 
lation. ' ' This provision does not validate an act of Con- 
gress which declares it to be a crime to conspire to de- 
prive others of the equal protection of the laws.^^ Nor 
does the XIII Amendment prohibit the creation of 
monopolies by a state, such as the exclusive right of pro- 
viding a place for the slaughtering of cattle.^^ Nor does 
it prohibit state legislation requiring railway companies 
to furnish separate accommodations for white and 
coloured passengers.^^ Nor does it prohibit congres- 
sional legislation providing for the punishment of sailors 
who desert a ship after having contracted to serve upon 
it.^^ Nor does it invalidate a promissory note made be- 
fore the adoption of the Amendment, the consideration 
for which note was the price of a slave, slavery having 
been lawful by the lex loci contractus at the time the note 
was given,^'^ and this rule holds even where the vendor 
made an express warranty, warranting the chattel to be a 
slave for life and the warrantor's title to him to be clear 
and perfect.^^ And, on the same principle, the estate of 
a former slave-owner may recover from one who used 
those slaves upon his own plantation a fair rental for 
their use, estimated to the time when they became free.®® 

^ U. S. V. Harris, 106 U. S. 629. 

'^ Slaughter House Cases, 16 Wall. 36. 

*= Plessy V. Ferguson, 163 U. S. 537. 

»" Eobertson v. Baldwin, 165 U. S. 275. 

"'White V. Hart, 13 Wall. 646; Boyce v. Tabb, 18 id. 546. 

"« Osborn v. Nicholson, 13 Wall. 654. 

'" Clay V. Field, 138 IJ. S. 464, 



THE XIV AMENDMENT. 311 

The XIV Amendment. 

130. The XIV Amendment declares that ''all persons 
born or naturalized in the United States, and subject to 
the jurisdiction thereof, are citizens of the United States 
and of the state wherein they reside. No state shall make 
or enforce any law which shall abridge the privileges or 
immunities of citizens of the United States ; nor shall any 
state deprive any person of life, liberty, or property, with- 
out due process of law ; nor deny to any person within its 
jurisdiction the equal protection of the laws. ' ' The pur- 
poses of the Amendment are to define citizenship of the 
United States and of the states, to confer citizenship upon 
negroes, to secure against hostile legislation of the states 
those privileges and immunities which are common to 
citizens of the United States,^^" and to protect all natural 
persons within the territorial jurisdiction of the United 
States, without regard to difference of race, colour, 
nationality, or citizenship.^ The Amendment does not 
confer upon women the right of suffrage,^ nor the right to 
practice law.^ The provision that "no state shall make or 
enforce any law which shall abridge the privileges or im- 
munities of citizens of the United States" protects, it 
seems, only those rights which are secured against state 
encroachment by other clauses of the Constitution : it does 
not extend to state legislation those restrictions which the 
first eight Amendments impose upon congressional ac- 
tion.* "Within the meaning of the Constitution, due 
process of law is secured when the laws operate on all alike 
and no one is subjected to an arbitrary exercise of the 
powers of government. The provision does not control 

^•"' The Slaughter House Cases, 16 Wall. 36. See also See. 119, supra. 
^ Yick Wo V. Hopkins, 118 U. S. 356. 
^ Minor v. Happersett, 21 Wall. 162. 
= Bradwell v. The State, 16 Wall. 130. 
* Maxwell v. Dow, 176 U. S. 581. See also See. 125, supra. 



312 RIGHTS OF PERSONS AND OF PROPERTY. 

mere forms of procedure, while, on the other hand, the 
bare observance of legal forms is insufficient when the 
proceedings are manifestly fraudulent.^ The prohibition 
of state legislation which denies to any person the equal 
protection of the laws, prevents the enactment of laws 
which discriminate unjustly against any citizen, although 
special legislation, as such, is not prohibited.*^ And while 
corporations are persons within the meaning of the 
Amendment,'^ yet foreign corporations are not entitled 
to such equal protection of the laws as to have the right to 
do business within a state without being hampered by 
such discriminating conditions as the state may choose to 
impose.^ 

The equal protection of the laws. 

131. The provision of the XIV Amendment that no 
state shall ''deny to any person within its jurisdiction 
the equal protection of the laws" requires that equal se- 
curity be given to all under like circumstances in the en- 
joyment of their personal and civil rights. The officers of 
a municipality may not, in the administration of an ordi- 
nance regulating the carrying on of a lawful business 
within tlie corporate limits, make arbitrary and unjust 
discriminations, founded on differences of race, between 
persons otherwise similarly placed.^ A state may not, 
to the prejudice of a coloured man who is put upon his 
trial for an offense against its laws, refuse to other 
coloured men the privilege of serving upon the jury, nor 
compel such prisoner to submit to a trial by a jury from 
which citizens of African descent are by reason of their 

■'' Sec. 117, supra. 

® Sec. 131, infra. 

' Sec. 127, supra. 

^ Sec. 127, supra. 

''Yiek Wo v. Hopkins, 118 U. S. 356. 



THE EQUAL PROTECTION OP THE LAWS. 313 

race excluded; ^^ but a prisoner cannot insist upon having 
a jury composed, either in part or in whole, of his own 
race, for all that he can rightfully demand is a jury from 
which men of his race are not excluded because of their 
colour.^ ^ A state may not require railroad companies to 
transport passengers or freight at unreasonably low rates, 
for in so far as such corporations are denied the right, 
while others are permitted, to receive reasonable profits 
upon their invested capital, those corporations are de- 
prived of the equal protection of the laws.^- So also a 
statute is unconstitutional which provides, as a penalty 
upon railroad companies for failure to pay certain debts, 
that parties successfully suing the companies to recover 
such debts shall be entitled to attorney's fees, but which 
gives to the companies no like or corresponding benefit.^^ 
So also a statute is unconstitutional which, although 
general in its terms, is designed to limit the charges of a 
single stockyards company and which does not limit the 
charges which may be made by similar companies doing 
like business.^* And a statute is unconstitutional which 
prohibits the recovery of the price of articles sold by a 
trust or combination formed in restraint of trade, but 
which does not apply to agricultural products or live stock 

" Strauder v. West Virginia, 100 U. S. 303 ; Bush v. Kentucky, 107 id. 
110; Gibson v. Mississippi, 162 id. 565; Carter v. Texas, 177 id. 442; 
Eogers v. Alabama, 192 id. 226. See also Ex parte Virginia, 100 id. 339; 
Brownfield v. South Carolina, 189 id. 426. 

" Virginia v. Rives, 100 U. S. 313 ; Bush v. Kentucky, 107 id. 110 ; In re 
Shibuya Jugiro, 140 id. 291, 297; Gibson v. Mississippi, 162 id. 565. See 
also Williams v. Mississippi, 170 id. 213; Tarrance v. Florida, 188 id. 519. 

'" C, M. & St. P. Ry. V. Minnesota, 134 U. S. 418 ; Eeagan v. F. L. & T. 
Co., 154 id. 362; Smyth v. Ames, 169 id. 466; L. S. & M. S. Ey. v. Smith, 
173 id. 684; cf. L. & N. E. v. Kentucky, 183 id. 503; M. & St. L. E. v. 
Minnesota, 186 id. 257. 

" G., C. & S. F. Ey. V. Ellis, 165 U. S. 150. See, however, A., T. & S. F. 
E. V. Matthews, 174 id. 96 ; and also F. M. L. Assn. v. Mettler, 185 id. 308 ; 
I. L. I. Co. V. Lewis, 187 id. 335; F. & M. I. Co. v. Dobney, 189 id. 301. 

" Cotting V. K. C. S. Y. Co., 183 U. S. 79. 



314 RIGHTS OF PERSONS AND OF PROPERTY. 

in the hands of the producer or raiser.^ ^ A corporation 
is a person within the meaning of the Amendment.^ ^ 

But a law is presumptively constitutional whenever it 
operates alike on all persons and property similarly situ- 
ated, and while a state may not make a classification of 
the objects of legislation an excuse for an unjust dis- 
crimination, or the oppression or spoliation of a particular 
class, yet special legislation, as such, is not prohibited by 
the Amendment.^ ^ A state may grant a monopoly of the 
slaughtering of cattle.^* It may require that prior to the 
admission to its territory of a corporation of another state, 

^' Connolly v. U. S. P. Co., 184 IT. S. 540. 

"Santa Clara County v. S. P. E., 118 U. S. 394; P. M. Co. v. Pennsyl- 
vania, 125 id. 181; G., C. & S. F. Ey. v. Ellis, 165 id. 150; Smyth v. Ames, 
169 id. 466; L. S. & M. S. Ey. v. Smith, 173 id. 684; M. P. Ey. v. Mackey, 
127 id. 205; M. & St. L. Ey. v. Herrick, ibid. 210; M. & St. L. Ey. v. 
Beekwith, 129 id. 26; C, C. & A. E. v. Gibbes, 142 id. 386; C. & L. T. Co. 
V. Sandford, 164 id. 578. 

^^ ' ' Class legislation, discriminating against some and favouring others, is 
prohibited, but legislation which, in carrying out a public purpose, is limited 
in its application, if within the sphere of its operation it affects alike all 
persons similarly situated, is not within the Amendment : ' ' Barbier v. Con- 
nolly, 113 U. S. 32. "Arbitrary selection can never be justified by calling 
it classification. ... It is apparent that the mere fact of classification is 
not sufficient to relieve a statute from the reach of the equality clause of the 
XIV Amendment, and that in all cases it must appear not only that 
a classification has been made, but also that it is one based upon some 
reasonable ground — some difference which bears a just and proper relation 
to the attempted classification — and is not a mere arbitrary selection : ' ' 
G., C. & S. P. Ey. V. Ellis, 165 U. S. 159, 165. ' ' The question in each case 
is whether the legislatmre has adopted the statute in exercise of a reasonable 
discretion, or whether its action be a mere excuse for an unjust discrimina- 
tion, or the oppression or spoliation of a particular class : ' ' Holden v. Hardy, 
169 U. S. 398. "Classification ... is not invalid because not depending 
on scientific or marked differences in things or persons in their relations. 
It suffices if it is practical, and is not reviewable unless palpably arbitrary : ' ' 
O. I. Co. V. Daggs, 172 U. S. 562. "The very idea of classification is that 
of inequality, so that it goes without saying that the fact of inequality in 
no manner determines the matter of constitutionality:" A., T. & S. F. E. 
V. Matthews, 174 U. S. 106. 

" Slaughter House Cases, 16 Wall. 36. 



THE EQUAL PROTECTIOlSr OF THE LAWS. 315 

sucli conditions as it may designate shall be observed; ^^ 
it may prohibit a white and a negro from living togther 
in adultery or fornication under more severe penalties 
than those to which the parties would be subjected were 
they of the same race and colour ; ^^ it may classify rail- 
roads for the purpose of regulating f ares,^^ and may estab- 
lish reasonable rates of fare ; ^- it may reasonably limit 
the rates of water supply companies ; ^^ it may fix the tolls 
which may be charged by turnpike companies,^^ and the 
rates which may be charged by grain elevator com- 
panies,^^ and in neither case is it necessary that the regu- 
lations so imposed be uniform throughout the state; it 
may make railroad corporations,^*^ or all corporations,^^ 
liable for injuries to employees caused by the negligence 
of fellow-employees; it may prohibit the sale of oleo- 
margarine within its limits ; ^^ it may prohibit the manu- 
facture and sale of oleomargarine which contains colour- 
ing matter, although permitting the use of colouring 
matter in butter ; ^^ it may authorize municipalities to im- 
prove streets and to assess the owners of adjoining lots 

^"P. M. Co. V. Pennsylvania, 125 U. S. 181; H. S. M. Co. v. New York, 
143 id. 305; New York v. Eoberts, 171 id. 658. 

^''Pace V. Alabama, 106 U. S. 583. 

^'Dow V. Beidelman, 125 U. S. 680. 

-= St. L. & S. r. Ey. V. Gill, 156 U. S. 649; Eeagan v. F. L. & T. Co., 154 
id. 362; Smyth v. Ames, 171 id. 361; M. & St. L. E. v. Minnesota, 186 
id. 257. See also C, M. & St. P. Ey. v. Tompkins, 176 id. 167 ; L. & N. E. 
V. Kentucky, 183 id. 503. 

'^ Stanislaus County v. S. J. & K. E. C. & I. Co., 192 U. S. 201. 

"^ C. & L. T. Co. V. Sandford, 164 U. S. 578. 

"^Munn V. Illinois, 94 U. S. 113, two justices dissenting; Budd v. New- 
York, 143 id. 517, three justices dissenting; Brass v. North Dakota, 153 id. 
391, four justices dissenting. 

'° M. P. Ey. V. Mackey, 127 U. S. 205; M. & St. L. Ey. v. Herrick, ihid. 210. 

" Tullis V. L. E. & W. E., 175 U. S. 348. 

^* Powell V. Pennsylvania, 127 U. S. 678. It may not, however, regulate 
commerce by prohibiting the sale, in original packages, of oleomargarine 
brought from other states: SchoUenberger v. Pennsylvania, 171 U. S. 1. 

=» C. C. D. Co. V. Ohio, 183 U. S. 238. 

21 



316 RIGHTS OF PERSONS AND OF PROPERTY. 

for the benefits accruing to them from the improvements f^ 
and it may provide that the proposed improvements shall 
not be made if a majority of the resident holders of ad- 
joining property protest, although the privilege of inter- 
ference is not given to non-residents, where there is no 
discrimination in the assessment for the improvements ; ^^ 
it may impose upon railroad companies liability to puni- 
tive damages for injuries caused by their omission to 
fence their tracks as required by law ; ^^ it may impose 
upon railway companies alone a penalty for allowing cer- 
tain weeds to go to seed upon their right of way ; ^^ it may 
tax corporate securities at their face value,^* and may 
classify property ^^ and occupations ^^ for the purpose of 
taxation, for the Amendment was not intended to compel 
the states to adopt an iron rule of equal taxation; it may 
tax all companies exercising the franchises of corpora- 
tions within its limits on the privilege of exercising those 
franchises ; ^'^ it may require the railroad companies of the 
state to pay the expenses of the state railroad commis- 
sion,^^ and the electric companies to pay the salaries of 

'"Walston V. Nevin, 128 U. S. 578; French v. B. A, P. Co., 181 id. 324; 
Detroit v. Parker, Hid. 399; Shumate v. Heman, ibid. 402; Chadwick v. 
Kelley, 187 id. 540; Sehaefer v. Werling, 188 id. 516; cf. Norwood v. Baker, 
172 id. 269, 

8^ Field V. B. A. P. Co., 194 U. S. 618. 

»^M. P. Ey. V. Humes, 115 U. S. 512; M. & St. L. Ry. v. Beckwith, 129 
id. 26 ; M. & St. L. Ey. v. Emmons, 149 id. 364. 

=^ M., K. & T. Ey. V. May, 194 U. S, 267. Three justices dissented. 

^'B. G. R. V. Pennsylvania, 134 U. S. 232; Jennings v. G. E. C. Co., 147 
id. 147. 

^Kentucky E. Tax Cases, 115 U. S. 321; A. Ex. Co. v. Ohio, 165 id. 194; 
Magoim V. I. T. & S. Bank, 170 id. 283 ; Orr v. Gilman, 183 id. 278 ; F. C. & 
P. E. V. Eeynolds, iUd. 471; Billings v. Illinois, 188 id. 97; Kidd v. Ala- 
bama, ibid. 730; Missouri v. Doekery, 191 id. 165. See also M. & M. Bank 
V. Pennsylvania, 167 id. 461 ; Connolly v. U. S. P. Co., 184 id. 540. 

=« Giozza V. Tiernan, 148 U. S. 657 ; Clark v. Titusville, 184 id. 329. 

"' H. I. Co. V. New York, 134 U. S. 594. 

^» C, C. & A. E. V. Gibbes, 142 U. S. 386. 



THE EQUAL, PEOTECTION OP THE LAWS. 317 

the subway commissioners ; ^^ it may provide that licenses 
to sell liquor shall not be granted save on the compliance 
by the applicant with certain conditions, which conditions 
may be more burdensome than those imposed upon per- 
sons engaged in other lines of business ; ^" it may allow 
a county or smaller district to prohibit the sale of liquor 
within its limits, but, discriminating in favour of pro- 
hibition, forbid the sale in the smaller district when it 
is prohibited by the county containing that district; *^ and 
it may allow a municipality to prohibit the sale or gift of 
liquors except by druggists, manufacturers, persons who 
give away liquors in their private dwellings, and railway 
corporations dispensing liquors in their cars under state 
license ; *^ it may apportion the movable property of rail- 
roads among its counties for assessment and taxation 
without so apportioning property owned by other corpora- 
tions or by individuals ; *^ it may require all railroad com- 
panies to remove grade crossings under certain condi- 
tions ; ** it may require grain elevator companies to insure 
grain stored by them ; ^^ it may provide that persons who 
have been before convicted of crime shall suffer severer 
punishment for subsequent offenses than for a first offense 
against the law ; ^^ it may provide that lands on the banks 
of a river may be taken for levees without compensation, 
the provision applying alike to all owners of riparian 
lands ; ^^ it may require that white and coloured passen- 
gers on railroads within the state be transported in sepa- 

=>= New York v. Squire, 145 U. S. 175. 
*» Giozza V. Tiernan, 148 U. S. 657. 
^^Eippey v. Texas, 193 U. S. 504. 
*^OMo V. DoUison, 194 U. S. 445. 
^^C. S. Ey. V. Wright, 151 U. S. 470. 
« N. T. & N. E. E. V. Bristol, 151 U. S. 556. 
« Brass v. North Dakota, 153 TJ. S. 391. 

"« Moore v. Missouri, 159 U. S. 673; McDonald v. Massachusetts, 180 
id. 311. 

^'Eldridge v. Trezevant, 160 U. S. 452. 



318 EIGHTS OF PERSONS AND OF PROPERTY. 

rate cars ; ^^ it may provide that the costs in actions im- 
properly instituted shall be borne by the prosecutor ; ^^ 
it may make railroad companies liable in damages for all 
fires along their routes caused by their locomotives,^" and 
provide, as a police regulation, that in an action to recover 
such damages the plaintiff, if successful, shall be allowed 
a reasonable attorney 's fee ; ^^ it may provide that in 
successful actions against life and health insurance com- 
panies the plaintiff shall be allowed an attorney's fee, 
although a similar condition is not imposed on other in- 
surance companies or on mutual relief associations ; ^^ it 
may allow to a successful plaintiff an attorney's fee in a 
suit on a policy covering real estate where the property 
has been totally destroyed, and exclude the right to such 
fee in suits to enforce policies on other classes of property, 
or where there has not been a total destruction of the 
property covered by the insurance ; ^^ it may provide that 
under certain conditions a change of venue shall be 
allowed to a party suing or sued by a corporation having 
more than fifty stockholders ; ^* it may provide that any 
person who drives a herd over a public highway, where 
such highway is constructed on a hillside, shall be liable 
for all damages caused by such animals, without imposing 
this absolute liability on those who move animals other- 
wise than in herds ; ^^ it may regulate the heating of steam 
passenger cars, although at the same time it declares that 
the regulations shall not apply to railroads less than fifty 

^« Plessy V. Ferguson, 163 U. S. 537. 
*^ Lowe V. Kansas, 163 U. S. 81. 
«» St. L. & S. F. Ey. V. Mathews, 165 U. S. 1. 

"A., T. & S. F. E. V. Matthews, 174 U. S. 96. Four justices dissented. 
=^ F. M. L. Assn. v. Mettler, 185 U. S. 308. See also I. L. I. Co. v. Lewis, 
187 id. 335. 

^' F. & M. I. Co. V. Dobney, 189 U. S. 301. Three justices dissented. 
^* C. S. Ey. V. Snell, 193 U. S. 30. 
=' Jones V. Brim, 165 U. S. 180. 



THE EQUAL, PROTECTION OF THE LAWS. 319 

miles in length ; ^^ it may limit the hours of labour in 
mines,^" and on public contracts ; ^^ it may commit to ad- 
ministrative officers the power to determine the right of 
citizens to serve as jurors, and it does not deny to any 
person accused of crime the equal protection of the laws 
unless discrimination against certain classes of citizens is 
shown in the actual administration of the statute ; ^^ it 
may provide that in suits on policies of fire insurance 
the defendant shall not be permitted to deny that the value 
of the property destroyed was that set forth in the policy 
of insurance, although no such provision is made concern- 
ing insurance against the destruction of property from 
causes other than fire ; ^^ it may give to residents priority 
over non-resident corporations in the distribution of the 
assets of insolvent debtors, for the prohibition relates 
only to the denial by the state of equal protection to 
persons ''within its jurisdiction;"^^ it may provide that 
if on the day of discharge of any railroad employee the 
wages then due to him be not paid the railroad shall be 
subject to a penalty ; ^^ it may provide that in a trial for 
murder the court may, on the motion of either the state 
or the prisoner, order a struck jury, and that in such case 
the accused shall be allowed only five peremptory chal- 
lenges, while in ordinary trials for murder the accused 

'' N. Y., N. H. & H. E. V. New York, 165 U. S. 628. 

'' Holden v. Hardy, 169 U. S. 366. Two justices dissented. 

=^ Atkin V. Kansas, 191 U. S. 207. Three justices dissented. 

=» Williams v. Mississippi, 170 U. S. 213; Tarrance v. Florida, 188 id. 
519; cf. Carter v. Texas, 177 id. 442; Eogers v. Alabama, 192 id. 226. 
But the Amendment does not protect individuals against unauthorized acts 
by state officials: Barney v. City of New York, 193 U. S. 430. See also 
Arbuckle v. Blackburn, 191 id. 405. 

»" O. I. Co. V. Daggs, 172 U. S. 557. 

"Blake v. MteClung, 172 U. S. 239; Sully v. American Nat. Bank, 178 
id. 289. 

'■ St. L., I. M. & St. P. Ey. V. Paul, 173 U. S. 404. 



320 EIGHTS OF PEKSONS AND OF PROPERTY. 

shall be allowed twenty peremptory challenges ; ^^ it may 
provide for the indictment of prisoners by information 
and their trial by a jury composed of eight instead of 
twelve jurors ; ®* it may declare a presumption that policy 
slips are held for an unlawful purpose when in the pos- 
session of persons other than public officers ; ^^ it may 
authorize municipalities to annex adjoining tracts of land 
used for other than agricultural purposes ; ^® it may pro- 
hibit all labour on Sunday except works of necessity and 
charity, providing, as a matter of law, that the keeping 
of a barber shop on Sunday shall not be deemed to be 
a work of necessity, but leaving the character of other 
kinds of labour to be determined as questions of fact ; ®'^ 
it may impose a license tax upon persons and corpora- 
tions carrying on the business of refining sugar and 
molasses, while exempting from such taxation planters 
who refine their own sugar and molasses ; ^^ it may tax per- 
sons who are engaged in hiring labourers to be employed 
beyond the limits of the state, although no such tax is im- 
posed upon the business of hiring persons to labour within 
the state ; ^^ it may provide that misstatements, other than 
fraudulent, in answer to interrogatories in applications 
for policies of life insurance shall not invalidate policies 
issued on the strength of those answers ; '^^ it may establish 
two district criminal courts and allow to the state an 
appeal from one of these courts although not allowing to 
it an appeal from the other; '^^ it may provide that the 

'* Brown v. New Jersey, 175 U. S. 172. See also Hayes v. Missouri, 120 
id. 68. 

«* Maxwell v. Dow, 176 U. S. 581. 

•^ Adams v. New York, 192 U. S. 585. 

«" Clark V. Kansas City, 176 U. S. 114. 

" Petit V. Minnesota, 177 U. S. 164. 

*« A. S. E. Co. V. Louisiana, 179 U. S. 89. 

«» Williams v. Fears, 179 U. S. 270. 

'" H. M. L. I. Co. V. Warren,, 181 U. S. 73. 

"Mallet V. North Carolina, 181 U. S. 589. 



THE EQUAL, PEOTECTION OF THE LAWS. 321 

real estate of corporations shall be assessed by a pro- 
cedure different from that used in determining the value 
of real estate owned by individuals ; '^^ it may require the 
assessement of railroad property which escaped taxation 
in preceding years, without providing for the assessment 
of other property which escaped taxation in the same 
period ; ^^ it may prohibit railway companies from charg- 
ing more for shorter than for longer hauls, except by per- 
mission of the railroad commission ; ^* it may prohibit the 
making of options for the purchase or sale of com- 
modities ; "^^ it may prohibit contracts for the sale of cor- 
porate stock on margin; ^^ and it may provide for the 
inspection of all mines in which more than five men are 
employed, and, after stipulating the fees to be charged 
by the inspectors, permit them to determine the number 
of inspections per year required by each mine.'^^ So also 
a municipality may forbid the use of steam-power by rail- 
ways on designated streets without forbidding its use by 
companies which traverse other streets of the city ; "^^ it 
may forbid washing and ironing in public laundries within 
definite limits between prescribed hours ; '^^ it may pro- 
hibit the keeping of a private market within six squares of 
a public market,^'' and it may forbid the maintenance 
of a cow stable within municipal limits without the per- 
mission of the municipal assembly.*^ So also a saloon- 
keeper may be denied a renewal of his license upon the 

" New York v. Barker, 179 U. S. 279. See also F. C. & P. E. v. Eeynolds, 
183 id!. 471. 

" F. C. & P. E. V. Eeynolds, 183 U. S. 471. 

'* L. & N. E. V. Kentucky, 183 U. S. 508. 

" Booth V. niinois, 184 U. S. 425. 

^« Otis V. Parker, 187 U. S. 606. 

" St. L. C. C. Co. V. lUinois, 185 U, S. 203. 

'^Eailroad Co. v. Eichmond, 96 U. S. 521. 

'^Barbier v. Connolly, 113 U. S. 27; Soon Hing v. Crowley, ibid. 703. 

*» Natal V. Louisiana, 139 U. S. 621. 

" Fischer v. St. Louis, 194 U. S. 361. 



322 RIGHTS OF PERSONS AND OF PROPERTY. 

ground that he is not a suitable person to conduct the 
business ; ^^ a prisoner may be tried and sentenced by a 
judge de facto of a court de jure; ^^ a prisoner convicted 
of conspiracy to defraud may be subjected to a heavier 
sentence than is imposed on a co-conspirator ; ^* judicial 
procedure may be regulated, provided the same course of 
procedure be applied to all persons under similar condi- 
tions ; ^^ a board of education which has not sufficient 
funds to maintain two high schools may exclude negroes 
from a high school which is maintained for the benefit of 
white students ; ^^ and a mayor may be given authority 
to grant or refuse permission to move buildings along 
the streets of a city.^^ The power of enforcement by 
appropriate legislation, vested by the Amendment in Con- 
gress, does not authorize congressional legislation with 
regard to individuals, for the Amendment restrains state 
and not individual action ; it has, therefore, been held that 
Section 5519, Revised Statutes of the United States, de- 
claring it to be a crime punishable by fine and imprison- 
ment for any two or more persons to conspire to deprive 
any person of the equal protection of the law is unconstitu- 
tional.^^ It has also been held that the Civil Eights legis- 
lation of Congress ^^ declaring that all persons within the 
jurisdiction of the United States shall be entitled to the 
full and equal enjoyment of inns, transportation facilities, 
etc., and subjecting to fine and imprisonment, and also to 

^ Crowley v. Christensen, 137 U. S. 86. 

^In re Manning, 139 U. S. 504. 

^Howard v. Fleming, 191 U. S. 126. 

^Duncan v. Missouri, 152 U. S. 377; Tinsley v. Anderson, 171 id. 101; 
Maxwell v. Dow, 176 id. 581; cf. Missouri v. Lewis, 101 id. 22; Brown v. 
New Jersey, 175 id. 172; Minder v. Georgia, 183 id. 559. 

^* Gumming v. Board of Education, 175 U. S. 528. 

" Wilson V. Eureka City, 173 U. S. 32. See also Davis v. Massachusetts, 
167 id. 43 ; Gundling v. Chicago, 177 id. 183. 

««U. S. V. Harris, 106 U. S. 629. 

«" Act 1st March, 1875, 18 Stat. 335. 



THE POLICE POWER. 323 

a liability to damages in an action at law, any person vio- 
lating the provisions of the statute, is unauthorized by the 
Amendment, the ground of decision being that the Amend- 
ment is prohibitory of state legislation and action, and 
that, therefore, it is not in the power of Congress to 
directly legislate for the protection of individual rights 
against wrong doing by individuals.^" 

The police power. 

132. The police power is that function of government, 
by the exercise of which, all persons, who are subject to 
the sovereignty of the government exercising the power, 
are, for ends of public policy, restrained in their use, or 
enjoyment, of some right of person or of property. The 
police power may attain its end by absolutely prohibiting 
the exercise of a particular right, or by so regulating the 
exercise of that right as to permit its use under conditions, 
and, if the power exists, the extent to which it may be 
exercised in any case is limited only by the will of the 
government, or the department thereof, in which the 
power may be vested, unless a restraint be imposed by 
organic law. It is clear that the United States cannot 
exercise within the territory of a state any portion of the 
state 's police power, but it is equally clear that the United 
States can exercise therein whatever of the police power 
is applicable to the protection or regulation of the rights of 
person or of property which are granted by the Constitu- 
tion of the United States. It may be said upon one side, that 
the autonomy of the states is nothing more than a name, if 
the police power is not to be exclusively exercised by them, 
and that the constitutional grant to the United States of 
any power which in its exercise may affect the internal 

«» Civil Eights Cases, 109 U. S. 3. See also Barney v. City of New York, 
193 id. 430. 



324 RIGHTS OF PERSONS AND OF PROPERTY. 

concerns of a state must be understood to have been made 
on the implied condition that its exercise is to be subject 
to the police power of the state. It may be said, on the 
other side, that, as the power of police involves a power 
not only to control, but also to forbid, the powers granted 
by the Constitution to the United States would be 
nugatory, if the states might veto, under the pretense of 
regulating. It may be repeated here as it has been said in 
another connection,^^ that while the states did not, by the 
adoption of the Constitution, surrender their local powers 
of government, yet, nevertheless, the territorial limits of 
each state 's jurisdiction, the grant to the United States of 
powers conflicting with state sovereignty, and a due regard 
to the right of citizens of other states, must so limit each 
state's otherwise unlimited police powers, that those 
powers shall not be so exercised as to interfere with the 
full exercise of the powers granted to the United States. 
Therefore, persons or property brought within the terri- 
tory of a state in the exercise of any federal right are 
exempt from obstructive state control until the federal 
power shall have ceased to operate, and the persons, or 
property, on which it acted shall have merged in the mass 
of persons, or property, within the territory of the state. 

'^ Supra, p. 70. 



CHAPTER XII. 

THE FEDEEAL SUPEEMACY AND THE EESEEVED EIGHTS OF 

THE STATES. 

133. The results of federal supremacy. 

134. The constitutional reservation of the rights of the states. 

135. The natui'e and extent of those reserved rights. 

136. The importance of the preservation of the rights of both the United 

States and the states. 

The results of federal supremacy. 

133. A consideration of the cases which have been cited 
in the preceding chapters of this book leads to the con- 
clusion that the supremacy of the government of the 
United States, within its constitutional sphere of action, 
involves : first, the exercise of judicial power by the gov- 
ernment of the United States for the purposes of enforcing 
the rights created by the Constitution, laws, and treaties 
of the United States, of punishing offenses against the 
laws of that government, and of finally determining the 
judicial construction of the Constitution, statutes, and 
treaties of the United States, and of the constitutions and 
statutes of the states, so far as regards subjects of federal 
jurisdiction; second, the exemption of all property and 
agencies of the federal government from state control ; and 
third, the non-exercise by the states of powers clashing 
with the powers granted by the Constitution to the govern- 
ment of the United States. 

The constitutional reservation of the rights of the states. 

134. Articles IX and X of the Amendments to the Con- 
stitution declare that, "the enumeration in the Constitu- 
tion of certain rights shall not be construed to deny 

325 



326 EESERVED EIGHTS OF THE STATES. 

or disparage others retained by the people. . . . The 
powers not delegated to the United States by the Consti- 
tution, nor prohibited by it to the states, are reserved to 
the states respectively, or to the people. ' ' If these Amend- 
ments had never been adopted, the construction of the 
Constitution as a whole would lead inevitably to the con- 
clusion that, in so far as the states are not controlled by 
the expressed or implied restrictions contained in the 
Constitution of the United States, they may severally 
exercise all the powers of independent governments.^ 

The nature and extent of those reserved rights. 

135. The nature and extent of the reserved rights of the 
states must be determined by a process of reasoning by 
exclusion, involving a statement of the express and implied 
constitutional restraints upon freedom of state action, and 
a conclusion that any state may, so far as the United States 
are concerned, rightfully exercise every power of govern- 
ment which is not included within the specific restraints 
thus enumerated. A consideration of the terms of the 
Constitution and of the effect of the judgments of the 
court, which have been cited in the preceding chapters of 
this book, renders it easy to formulate a statement of the 
general nature of the constitutional restraints upon the 
states. By force of those restraints, a state cannot with- 
draw from the Union, nor deprive itself of its rights as 
one of the United States, nor emancipate itself from the 
constitutional limitations upon freedom of state action ; it 
cannot have any international relations with foreign 
states, nor with any other of the United States; it can- 
not enter into treaties with foreign powers, nor make 
interstate compacts; it cannot engage in war, unless ac- 
tually invaded, or in such imminent danger as will not 

^ Supra, Section 3. 



NATURE AND EXTENT OF RESERVED RIGHTS. 327 

admit of delay; it cannot grant letters of marque and 
reprisal ; it cannot adopt any other than a republican form 
of state government,- nor grant any title of nobility; it 
cannot prescribe the conditions of its citizenship, for the 
birth within the United States of any person subject to 
their jurisdiction, or the naturalization of any person 
under the acts of Congress, followed, in either case, by 
residence within a state, makes the person so born or 
naturalized, and so residing, a citizen of that state ; it may 
not, under the penalty of a reduction in the basis of repre- 
sentation, deny or abridge the right to vote at elections for 
electors, congressmen, state executive, or judicial officers, 
or legislators of any male inhabitant twenty-one years of 
age and a citizen of the United States; it cannot, in its 
regulation of the exercise of the right of suffrage by its 
citizens, discriminate because of race, colour, or previous 
condition of servitude ; it cannot in its action with regard 
to its own citizens or with regard to temporary denizens 
within its territory, abridge those privileges or immunities 
which are common to citizens of the United States, nor 
deprive any person of life, liberty, or property, without 
due process of law, nor deny to any person the equal 
protection of the laws ; it cannot deny to citizens of other 
states those privileges and immunities of citizenship which 
it allows to its own citizens ; it cannot control or regulate 
the immigration or residence of aliens; it cannot tax 
the property of the United States, nor the agencies em- 

- Section 4 of Article IV of the Constitution requires the United States to 
"guaranty to every state in this Union a republican form of government." 
It rests with Congress to decide what government is the established one in a 
state, and also to determine upon the means proper to be adopted to fulfil the 
guaranty of a republican form of government to the states: Luther v. 
Borden, 7 How. 1, 42. See also Taylor and Marshall v. Beckham, 178 U. S. 
548. Chase, C. •!., pointed out in Texas v. White, 7 Wall. 727, that this 
constitutional obligation required the United States, after the suppression 
of the Eebellion, to re-establish the representation in Congress of the states 
lately in rebellion. 



328 EESEKVED EIGHTS OF THE STATES. 

ployed by the United States in the execution of its consti- 
tutional powers to such an extent as to interfere with the 
full performance by such agents of their duties to the 
United States, nor the subjects of foreign or interstate 
commerce in such a manner as to amount to a regulation 
of such commerce, nor lay any imposts or duties on im- 
ports or exports, except what may be absolutely necessary 
for executing its inspection laws, nor lay any duty on ton- 
nage; it cannot coin money, nor emit bills of credit, nor 
make anything but gold and silver coin a tender in pay- 
ment of debts; it cannot, by any law or by any act to 
which it, by its enforcement thereof, gives the force of a 
law, deprive a party of the legal right of enforcing, or 
obtaining compensation for the breach of, an express and 
valid contract, executed or executory; it cannot regulate 
commerce, foreign or interstate, or with the Indian tribes, 
by obstructing or burdening, or discriminating against, 
such commerce; it cannot exercise judicial jurisdiction 
over persons or subject-matters rightfully withdrawn by 
the United States from its jurisdiction, and in its exercise 
of jurisdiction it cannot derogate from the supremacy of 
the Constitution, laws, and treaties of the United States, 
nor fail to give full faith and credit to the public acts, 
records, and judicial proceedings of every other state ; it 
cannot pass any bill of attainder or ex post facto law; 
and it cannot so exercise its powers of police regulation 
as to interfere with the exercise of the constitutional 
powers of the United States, or, in other words, in such 
manner as to operate upon persons or property brought 
within its jurisdiction in the exercise of powers granted 
to the United States, before such persons or property shall 
have lost their distinctive character and merged in the 
mass of persons or property within the territory of the 
state. Such are substantially the constitutional restraints 
upon the powers of the states ; and their practical effect is 



RIGHTS OF UNITED STATES AND THE STATES. 329 

that, while limiting the powers of each state in that which 
concerns foreign nations, and in that which affects the 
interests of other states, and of the citizens of those other 
states, it yet reserves to each state full powers of self- 
government in all that affects only the interests of that 
state and of its own citizens. 

The importance of the preservation of the rights of both 
the United States and the states. 

136. The Constitution was the result of a struggle be- 
tween contending parties, the one fearing a disintegration 
of the Union as a consequence of the weakness of the con- 
federation, and striving to create a nation, and the other 
mindful of the contest for the independence of the colonies, 
and seeking to sacrifice as little as possible of the autonomy 
of the states. Fortunately for the peace and prosperity of 
the country, and for the permanency of its free insti- 
tutions, neither party triumphed, and their conflict of 
opinion gave birth to a government, which, though 
national in its relations to foreign powers, and in the 
directness of its action upon the citizens of the several 
states, is also federal in its reservation to the states and 
the people of all powers not expressly, or by necessary 
implication, granted to the United States. The distin- 
guishing characteristics of the Constitution, thus created, 
are the limitation in terms of the powers confided to the 
United States, the reservation to the states of the right 
of local self-government, and that practical conservatism, 
which is the necessary consequence of the supremacy of 
a written Constitution, whose manner of amendment 
guards it against hasty changes. The government created 
by that Constitution has stood the tests of time and 
growth ; its nationality has survived the shocks of foreign 
and of civil war; and its recognition of the principle of 



330 RESERVED RIGHTS OF THE STATES. 

home rule has overcome the disintegrating tendencies of 
the expansion of territory and the increase of population. 
That in the future as in the past the United States may 
escape the perils of dissolution and the dangers of con- 
solidation, it is necessary that its Constitution be main- 
tained in its integrity, and that the reserved rights of the 
states, and the supremacy of the United States within 
the limits of its delegated powers, be alike jealously 
guarded. So long as that just equipoise of federal and 
of state power shall be preserved, and so long as the 
mass of the people shall continue to be God-fearing and 
law-abiding, and shall steadfastly resist any usurpation 
of power, by whomsoever made, the United States will 
triumph over all that may endanger the perpetuity of 
their free institutions. 



INDEX. 

The references are to the pages. 



ACTIONS. 

Against the United States, 209, 212. 
Against a state by the United States, 209. 
Between states, 211. 

Between a state and citizens of another state, 213, 258. 
Between citizens of different states, 210, 215, 239. 
Legislation affecting, as impairing contracts, 142, 143. 
Legislation affecting, as denying due process of law, 275, 279. 
See also JuDiciAii Powee. 

ADMIEALTY. 

Jurisdiction in, 206. 

AGENCIES. 

Federal, state taxation of, 44. 
State, federal taxation of, 39. 

ALIENS. 

Admission and naturalization of, 291, 296. 

ALLIANCES. 

By states forbidden, 191. 

AMBASSADORS. 

Jurisdiction in cases affecting, 197, 206, 221. 

AMENDMENTS. 

First eight limit only federal government, 258, 298. 
I, 309. 

IV, 245. 

V, 247, 251, 297. 

VI, 253. 

VII, 255. 

VIII, 257. 
XI, 258. 

XIII, 310. 

XIV, purposes of, 311. 
XIV, citizenship, 290, 292. 

XrV, privileges and immunities of citizenship, 298. 

331 



332 INDEX. 

The references are to the pages. 

AMENDMENTS— Continued. 

XIV, due process of law, 273, 297. 
XIV, equal protection of the laws, 312. 

XIV, right of suffrage, 292. 

XV, 291, 293, 294, 295. 

APPELLATE JUEISDICTION. See Judicial Power. 

ATTAINDER 

Prohibition of bills of, 182. 

Bills of, defined, 187. 

Bills of, illustrations of, 188. 

BANKS, NATIONAL. 

Power of Congress to create, 17. 
State taxation of, 48. 
Federal taxation of, 17, 23. 

BANKS, STATE. 

Federal taxation of, 17, 40. 

BILLS OF ATTAINDEE. See Attainder. 

BILLS OF CEEDIT. 

Prohibition of state, 189. 
Definition of, 189. 
Illustrations of, 189, 190. 

BILLS OF EXCHANGE. 

Dealing in, taxable by states, 55, 62. 

BILLS OF LADING. 

State taxation of, 63. 

BRIDGES. 

Regulation of, 82. 

CARRIERS. See Railways, Shipping. 

CASES. 

Requisites of judicial, 228. 

See also Actions, Judicial Power. 

CHARTERS. 

As contracts, 163, 165, 168. 

Implied contracts in, 170, 173, 174, 176. 

CIRCUIT COURTS OF THE UNITED STATES. 
Jurisdiction of, 219, 221. 



INDEX. 333 

The references are to the pages. 

CIECUIT COUETS OF APPEALS OF THE UNITED STATES. 
Jurisdiction of, 219, 226. 

CITIZENS. 

Of the United States, 290. 

Of a state, 291, 292. 

Privileges and immunities of citizens of the United States, 298. 

Privileges and immunities of citizens of one state within another 

state, 300. 
Eight to vote not a privilege of citizenship, 292. 
Discriminations in state regulation of suffrage, 293. 
Eight to serve on juries, 295. 

CIVIL EIGHTS. 

Federal regulation of, unconstitutional, 322. 

CLASSIFICATION. 

Of persons or property for purposes of state legislation, 314. 
Uniformity in federal taxation, 26, 35, 37. 

COLONIES. See Territories. 

COLOUEED PEESONS. 

Separate transportation, 98, 317. 

Exclusion from schools for white students, 322. 

Federal regulation of civil rights unconstitutional, 322. 

Eight to vote, 292. 

Eight to serve on juries, 295, 312. 

COMITY, INTEESTATE. See Alliances, Full Faith and Credit. 

COMMEECE. 

Definition of, 62. 

Eegulation of, 59, 64. 

Constitutional provisions as to, 59. 

Historical reason for provisions, 61. 

Federal statutes regulating, 66. 

Limits of federal and state regulation of, 68. 

Taxation as regulation of, 54, 90. 

Distinction between internal and foreign or interstate, 68. 

Internal commerce, 70. 

With Indian tribes, 135, 

COMMON LAW. 

Theory of judicial system under, 199. 
In federal coiu-ts, 239. 



334 INDEX. 

The references are to the pages. 

COMPACTS BETWEEN STATES, 191. 

COMPENSATION. 

For private property taken for public use, 253, 277, 278. 

CONCUERENT JURISDICTION. 

Of federal and state courts, 217, 268. 

CONFLICT OF JURISDICTION. 

Between federal and state courts, 265. 

CONSTITUTION OF THE UNITED STATES. 

By whom ratified, 1. 
Effect of ratification of, 1. 
Eules of construction of, 233, 234. 
Supremacy of, 325. 

CONSTEUCTION OF CONSTITUTION AND STATUTES. 
Rules of, 232, 233. 

CONSULAR COURTS. 

Establishment of, 19, 246, 

CONSULS. 

Jurisdiction in eases affecting, 197, 206, 221. 

CONTRACTS. 

Prohibition of impairment of obligation of, 137. 

Prohibition affects only state laws, 137. 

"Law" defined, 138. 

"Obligation" defined, 142. 

"Contracts" defined, 147. 

History of the prohibition, 155. 

Judgments of state courts, as to non-existence or non-impairment, 

not conclusive, 141. 
Contracts made by states, 160. 
Contracts made by political subdivisions, 154. 
Contracts of states with political subdivisions, 170. 
Regulation of remedies, 142. 
Judgments as contracts, 153. 
Charters as contracts, 162, 163, 170, 
Contracts implied in charters, 170. 
Express exemption from state taxation, 52, 161. 
Implied exemption from state taxation, 52, 173. 
Express grants of peculiar privileges, 168. 
Implied grants of peculiar privileges, 174. 



INDEX. 335 

The references are to the pages. 

GO'NTBACTS— Continued. 

Exemption from police power, 176. 

Contracts as to matters of public concern, 178. 

Constitutional prohibition as affecting suits against states, 180. 

Force and effect of constitutional prohibition, 181. 

CONTEACTS IN EESTEAINT OF TEADE. 

Under Anti-trust Act and at common law, 124. 

CONTEOVEESIES. See Actions. 

COEPOEATIONS. 

Citizenship of, for jurisdictional purposes, 303. 
Not citizens within meaning of Art. IV, sec. 2, 304. 
Persons within meaning of XIV Amendment, 304, 314. 
Foreign, 303, 314. 

COUNSEL FOE DEFENSE. 
Eight to, 254, 

COURTS, FEDEEAL. See Judicial Power; Supreme Court; Circuit 
Courts of Appeal; Circuit Courts; District Courts. 

COURTS, STATE. See Judicial Power. 

COUETS-MAETIAL. 

Jurisdiction of, 243, 247. 

CEEDIT, BILLS OF. See Bills of Credit. 

CEIMES. 

Ex post facto laws prohibited, 182. 

Federal judicial procedure, 246-258. 

Due process of law in state judicial procedure, 273-276, 280. 

Equal protection of the laws in state judicial procedure, 312, 317, 319, 

320, 322. 
Cruel and unusual punishments, 257. 

CEUEL AND UNUSUAL PUNISHMENTS. 
Prohibited, 257. 

CUEEENCY. 

Legal tender, 20. 
Bills of credit, 189. 

DAMS. 

Eegulation of, 82. 



336 INDEX. 

The references are to the pages. 

DIEECT TAXATION. 

By United States, 30. 

DISTEICT COUETS OF THE UNITED STATES. 
Jurisdiction of, 219, 222. 

DIVOECE. 

Not impairment of contract, 148, 

Eecognition of decrees obtained in other states, 283, 286. 

DUE PEOCESS OF LAW. 

Under V Amendment, 247, 297. 
Under XIV Amendment, 273, 311. 

DUTIES. See Exports, Imports. 

EIGHTH AMENDMENT. 

Cruel and unusual punishments, 257. 

ELECTIONS. 

State regulation of, 292. 
Federal regulation of, 293, 295. 

ELEVENTH AMENDMENT. 
Effect of, 258. 

EQUAL PEOTECTION OF THE LAWS. 
Eight to, 312, 

EXCISES. 

Eequirement of uniformity of, 35. 

EXPOETS. 

State taxation of, 43, 87. 

State inspection of, 89, 

Term not applicable to interstate commerce, 73, 

Term as applied to commerce with Porto Eico, 12, 27, 28, 37, 73. 

Taxation of, by United States, 28, 73. 

EX POST FACTO LAWS. 
Prohibition of, 182. 
Definitions of, 184. 
Illustrations of, 185. 

EXPEESSED EESTEAINTS. 
On states, 4. 



INDEX. 337 

The references are to the pages. 

EXTEADITION. 

From other states, 193. 

FAITH AND CREDIT. 

To statutes, records, and judgments of other states, 280. 

FEERIES. 

Taxation of, 54, 57, 82. 
Regulation of, 81, 100. 

FIFTEENTH AMENDMENT, 291, 293, 294, 295. 

FIFTH AMENDMENT. 

Prosecution upon information, 247. 

Due process of law, 247. 

Putting twice in jeopardy, 251. 

Compelling accused to be a witness against himself, 252. 

Compensation for property taken, 253. 

FIRST AMENDMENT, 309. 

FISHING. 

State regulation of, 72, 274, 299, 301. 

FOREIGN CORPORATIONS. 

Rights and liabilities of, 303. 

FOURTEENTH AMENDMENT. 
Scope of, 298, 311. 

As defining citizenship, 290, 291, 292. 
As affecting right to vote, 293, 294. 

Privileges and immunities of citizens of the United States, 298. 
Due process of law, 273. 
Equal protection of the laws, 312. 

FOURTH AMENDMENT, 246. 

FUGITIVES FROM JUSTICE. 

State obligations as to, 193. 

Jurisdiction as to issue of habeas corpus in cases of, 194. 

FULL FAITH AND CREDIT. 

To statutes, records and judgments of other states, 280. 

GRAND JURY. See Information. 

GRANTS. 

As contracts, 160. 



338 INDEX. 

The references are to the pages. 

HABEAS COEPUS. 

In cases of fugitives from justice, 194. 

In cases of restraint of liberty in violation of the Constitution, 225. 
In cases of restraint for acts done in pursuance of federal author- 
ity, 214. 

HAEBOUE EEGULATIONS. 
By states, 78. 

HEALTH LAWS. 

Established by states, 80. 

IMMIGEANTS. 

Admission of, 296. 

IMMUNITIES OF CITIZENSHIP. See Citizens. 

IMPAIEMENT OF CONTEACTS. See Contracts. 

IMPEACHMENTS. 

Jurisdiction in, 243. 

IMPLIED POWEES. 

Defined, 3. 
Necessity of, 15. 
Grant of, 16. 
Illustrations of, 17. 

IMPLIED EESTEAINTS. 

On states, 4, 6, 44. 

IMPOETS. 

State taxation of, 43, 87. 

State prohibition of sale of, 100. 

Federal taxation of, 66. 

Federal prohibition of, 66. 

Term not applicable to interstate commerce, 87. 

"Imports" into Porto Eico from United States, 12, 27, 28, 37. 

"Imports'" into United States from Porto Eico, 12, 13, 37. 

IMPOSTS. 

State imposition of, 43. 

IMPEOVEMENTS OF NAVIGATION. 
Federal power over, 85. 

INCOME TAX. 30. 



INDEX. 339 

The references are to the pages. 

INDIAN TEIBES. 

Not states, 135, 213. 

Eegulation of commerce with, 135. 

Their exercise of powers not restrained by V Amendment, 247. 

INDICTMENT. 

After submission to grand jury amendable only on resubmission, 247. 

INFOEMATION, PEOSECUTION UPON. 
In federal trials, 12, 247. 
In state trials, 274, 320. 

INSOLVENT LAWS. 

Effect of state, 150. 

INSPECTION LAWS. 

State, 44, 89, 91, 280, 321. 
Federal, 251. 

INSUEANCE. 

State regulation of contracts of, 63. 

State regulation of suits against insurance companies, 318, 319, 320. 

INTEESTATE COMMEECE ACT, 106. 

INTOXICANTS. See Liquor Laws. 

JEOPAEDY. 

Putting twice in, 251. 

"JIM CEOW" LEGISLATION, 98, 317, 322. 

JUDGES. 

Tenure of office of federal, 196. 

Compensation of federal, not diminishable during continuance in 

office, 197. 
Character of federal judiciary, 230. 

JUDICIAL POWEE. 

Necessity of federal, 203. 
Constitutional provisions as to federal, 196. 
Courts of the United States, 219. 
Federal jurisdiction, 214, 
Exclusive federal jurisdiction, 217. 
Concurrent federal jurisdiction, 217, 268. 
Original jurisdiction of federal courts, 216, 220. 
Appellate jurisdiction of federal courts, 223. 
Eemoval of causes, 224, 227. 



340 INDEX. 

The references are to the pages. 

JUDICIAL FOWEBr— Continued. 

In cases in law and equity under the Constitution, 205. 
Jurisdiction dependent on character of parties. See Actions. 
Jurisdiction as to political questions, 228, 231. 
Jurisdiction in habeas corpus. See Habeas Corpus. 
Jurisdiction in admiralty, 206, 243, 269. 
Courts martial, 243. 
Military commissions, 243, 246, 249. 
Impeachments, 243, 244. 

Construction of Constitution and statutes, 232, 233. 
Limitation of, by Amendments. See Amendments. 
Law administered in federal courts, 239. 
Eelations between federal and state courts, 265. 
Judicial power of the states as affected by the "full faith and 
credit" clause, 280. 

JUDICIAL SYSTEM. 

Theory of, under common law, 199. 

JUDGMENTS. 

As contracts, 153. 

Effect of, in other states, 280. 

Scope of, of courts, 237. 

JUEISDICTION. 

Conflict of, between state and federal courts, 265. 
Of federal courts. See Judicial Power. 

JUEY. 

Trial by, not to be taken away by federal government, 246, 249, 250, 

253, 255. 
Waiver of trial by, for minor offenses, 246, 254. 
Trial in state courts, 274, 320. 
Discriminations forbidden in state regulation of jury service, 295, 

312. 

JUST COMPENSATION. 

For private property taken for public use, 253, 277, 278. 

LANDS. 

Public, state taxation of, 45, 46. 

LAW OF THE LAND, 4, 248. 

LEGAL TENDEE. 

Power of Congress over, 20. 



INDEX. 341 

The references are to the pages. 

LIBEETY. 

Eeligious, 309. 

Of speech, 309. 

Deprivation of, without due process of law, 247, 250, 251, 280, 297. 

LIFE, LIBEETY AND PEOPEETY. See Due Process of Law. 

LIMITATIONS, STATUTES OF. 

As impairing contracts, 143. 

As denying due process of law, 275, 279. 

LIQUOE LAWS. 

License legislation, 317, 321. 
Local option, 275, 317. 
Prohibition, 100, 278. 
Original package doctrine, 91, 93. 
Inspection, 90. 
Taxation, 92. 

LOTTEEIES. 

Federal legislation, 64. 
State legislation, 178, 320. 

MILITAEY COMMISSIONS, 243. 

MONEY. See Bills of Credit, Legal Tender. 

MONOPOLIES. 

Federal legislation, 120. 

State grants of, 168, 169, 175, 178, 310, 314. 

State restriction of, 313. 

NATIONAL BANKS. 

Power of Congress to create, 17. 
State taxation of, 48. 
Federal taxation of, 17, 23. 

NATUEALIZATION. 

Eegulation of, by United States, 291. 

State courts may admit to citizenship under acts of Congress, 218, 291. 

NAVIGABLE WATEES. 

Defined, 209. 

Title to land under, 71. 

Improvements of, 85. 



342 INDEX. 

The references are to the pages. 

NAVIGATION. 

Eegulation of, by United States, 77. 
Eegulation of, by states, 77. 
Improvements of, 85. 

NEGEOES. See Coloured Persons. 

OEDINANCE OF 1787. 

Effect of, on regulation of commerce, 84. 

OEIGINAL JUEISDICTION. 

Of federal courts, 216, 220. 

OEIGINAL PACKAGE. 

Doctrine, 93. 

Taxation of goods in, see also 88. 

PAINS AND PENALTIES. 

Prohibition of bills of, 182, 188. 
Definition of bUls of, 188. 

PATENTS. 

Granted by United States do not exempt from state taxation, 47. 
Granted by United States do not exempt from state police regula- 
tion, 70. 
Exclusive license to use, does not violate Anti-trust law, 123. 
Jurisdiction of state courts in patent cases, 269. 

PEESON, EIGHTS OF. See Eights op Person. 

PHILIPPINES. See Territories. 

PIEES. 

Eegulation of, 87. 

PILOTAGE. 

Eegulation of, 76. 

POLICE POWEE. 

Definition of, 323. 

Of the United States, 323. 

Of the states, 323. 

POLICE EEGULATION. 

As affecting commerce, 97. 
Exemption by contract from, 176. 



INDEX. 343 

The references are to the pages. 

POET DUES. 

Imposition of, by states, 75. 

POETO EICO. 

Taxation, 12, 13, 27, 28, 37, 73. 
Immigration from, 298. 

POET EEGULATIONS. 

Established by states, 78. 

POETS, PEEFEEENCES OF, 73, 

PEEAMBLE OF THE CONSTITUTION. 
Force and effect of, 6. 

PEIVILEGES AND IMMUNITIES. 

Of citizens of the United States, 298. 

Of citizens of one state within another state, 300. 

PEOCESS OF LAW. See Due Process op Law. 

PUBLIC LANDS. 

State taxation of, 45, 46. 

QUAEANTINE EEGULATIONS, 80. 

EAILWAYS. 

Federal regulation of interstate transportation by, 106. 

State regulation of interstate transportation by, 97. 

State police regulation of, 97. 

State taxation of, 102. 

Tolls for use of improved facilities for transportation, 102. 

EAILWAY EATES, STATE EEGULATION OF. 

As limited by commerce clause, 98, 101, 101a. 
As limited by contract, 164, 177, 178. 

As limited by requirement of due process of law, 101a, 278. 
As limited by requirement of equal protection of the laws, 101a, 
313, 315, 321. 

EAILWAY STATIONS. 

State regulations concerning, 99, 100, 101. 

EATIFICATION OF CONSTITUTION. 
Effect of, 1. 

EECOEDS. 

Proof of, in other states, 280. 



344 INDEX. 

The references are to the pages. 

EEGULATION. 

Of commerce. See Commekce. 
Of remedy. See Contracts. 

EELATION BETWEEN THE GOVERNMENTS, 1. 

EELATION BETWEEN FEDEEAL AND STATE COUETS, 265. 

EELIGION. 

Establishment of, 309. 

EEMEDY, EEGULATION OF. See Contracts. 

EEMOVAL OF CAUSES, 224, 227. 

EEPUBLICAN FOEM OF GOVEENMENT. 
Guaranteed to the states, 327. 

EESEEVED POWEES AND EIGHTS. 
Of the states, 2, 325, 326. 

EESTEAINTS ITPON STATES, 4. 

EETEOSPECTIVE LAWS. 

Not prohibited, 182, 183. 

EIGHTS OF PEESON AND OF PEOPEETY. 
State control over, 298. 
As protected by V Amendment, 247. 
As protected by XIV Amendment, 273, 311, 312. 

EXILES OF CONSTEUCTION. 

Of Constitution and statutes, 232, 233. 

SEAECHES AND SEIZUEES. 

Unreasonable, by federal officers, prohibited, 246. 

SECESSION. 

Unconstitutionality of, 1. 

SELF-GOVEENMENT. 

Eeservation to the states of right of, in local matters, 329. 

SEVENTH AMENDMENT, 255. 

SHIPPING. 

Eegulation of, by United States, 77. 
Eegulation of, by states, 77. 
State taxation of, 57, 106. 

SIXTH AMENDMENT, 253. 



INDEX. 345 

The references are to the pages. 

SLAVEEY. 

Abolished by XIII Amendment, 310. 

STATES, THE. 

Existence of, before the Constitution, 2. 

Independent of each other, so far as not controlled by Constitu- 
tion, 2. 

Powers and obligations of new, 2. 

Eestraints upon, 4. 

Taxation by, 40. 

Suits against, as affected by contracts, 180. 

Suits against, as affected by XI Amendment, 214, 258. 

Judicial power of, as affected by the federal supremacy, 232, 265. 

Judicial power of, as affected by the grant of judicial power to the 
United States, 270. 

Judicial power of, as affected by the XIV Amendment, 273. 

Eeserved rights of, 2, 325, 326. 

Necessity for maintenance of rights of, 329. 

STATE AGENCIES. 

Federal taxation of, 39. 

STATE BANKS. 

Federal taxation of, 17, 40. 

STATE COUETS. See Judicial Power. 

SUITS. See Actions, Judicial Power. 

SUPEEMACY OF THE UNITED STATES. 
State taxation affected by the, 44. 

State regulation of federal judicial process or practice, 265. 
Supremacy of the Constitution, 3, 232. 
Supremacy of the laws of the United States, 3, 233. 
Supremacy of the treaties of the United States, 3, 238. 
Eesults of the, 325. 

SUPEEME COUET. 

Jurisdiction of, 219. 
Constitution of, 220. 
Appeals to, 226. 
See also Judicial Power. 

TAXATION. 

Defined, 22. 

Power of, in whom vested, 22. 

Charges which are not taxes, 23, 39. 

Not to be imposed for private purposes, 24. 



346 INDEX. 

The references are to the pages. 

TAXATION, FEDEEAL. 

Constitutional provisions as to, 25. 

Eestrictions upon, 26. 

Uniformity of, 35. 

Direct, 30. 

Of imports and exports, 28, 29, 87. 

In the territories, 12, 26, 27, 28, 37. 

Of state agencies, 39. 

TAXATION, STATE. 

General power of, 40. 

Illustrations of power of, 40, 41. 

Expressed restraints on, 43. 

Implied restraints on, 44. 

Of federal agencies, 44. 

Of national banks, 48. 

Of imports, 88. 

Of goods from other states, 43, 90. 

Of persons and property beyond its territory, 41, 42. 

As affected by contracts of exemption, 52. 

As a regulation of commerce, 54. 

Denial of due process of law in, 277. 

Denial of equal protection of the laws in, 41, 316, 317, 320, 321. 

TELEGEAPHS. 

Eegulation of, 133, 

State taxation of, 40, 134. 

TEEEITOEIES. 

Congressional power over, 7. 
Taxation in, 12, 26, 27, 28, 37, 73. 
Trial by jury in, 10, 12. 

THIETEENTH AMENDMENT. 

Slavery and involuntary servitude prohibited by, 310. 

TITLES or NOBILITY. 

Not to be granted by the states, 327. 

TONNAGE. 

Defined, 74. 

State duties upon, 43, 44, 74. 

TEADE-MAEKS. 

Federal regulation of, 63. 



INDEX. 347 

The references are to the pages. 

TEANSIT. 

Eight of, not limitable by state taxation, 47, 104. 

TEANSPOETATION. See Eailways, Shipping. 

TEEATIES. 

Supremacy of, 238. 

TEIAL BY JIJEY. See Juby. 

TEIBES. See Indian Tribes, 

TEUSTS. 

Necessity of, 114. 
Anti-trust law, 120. 

TWICE IN JEOPAEDY, 251. 

UNIFOEMITY. See Classification. 

UNION. 

Indissolubility of, 1. 

UNITED STATES. 

Limited powers of, 2. 
Supremacy of, 3, 325. 

VOTEES. See Citizens. 

WAEEANTS. 

Eequisites to issue of search, 246. 

WATEE-WAYS. See Navigable Watees. 

WHAEVES. 

State regulation of, 83, 87. 

WITNESSES. 

Eight of accused to be confronted with, 254. 

Eight of accused to have compulsory process for obtaining, 254. 



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